Towards the Duty-Based Approach

Towards the Duty-Based Approach

Developing the Concept and Methodology of Anti-Discrimination Compliance Monitoring - A View from the Civil Society in Slovakia

Master’s Programme in Social Work and Human Rights Degree Report 30 higher education credits

November 2015

Author: Lubica Trginova

Supervisor: Ronny Heikki Tikkanen

ABSTRACT

Title: Towards the Duty-Based Approach: Developing the Concept and Methodology of Anti-Discrimination Compliance Monitoring - A View from the Civil Society in Slovakia Author: Lubica Trginova

Key words: anti-discrimination, monitoring, positive duties, compliance, implementation Slovakia has one of the more progressive anti-discrimination laws in the EU, yet it has not been sufficiently implemented. Discrimination prevails as a paramount cross-sectional social problem identified by practitioners in human rights advocacy NGOs. Especially alarming is the near absence of discrimination monitoring and equality data collecting, precluding any action from having the potential to bring a positive and sustainable change in the status of disadvantaged groups. For generally poor institutional compliance with EU human rights norms, researchers placed Slovakia among countries of ‘dead letters’, with equality chronically not delivered on the ground.

The present research draws on the rich experience and suggestions of 22 human rights advocates from NGOs working on behalf of those at risk of discrimination on a diverse array of grounds. Methodologically, the research bears elements of participatory action, as it originates from my collaboration with one of the NGOs with expertise in anti-discrimination.

Its purpose is to examine anti-discrimination non-implementation patterns of public institutions from the perspective of civil society. Subsequently, it explores which concept and methodology of anti-discrimination monitoring could bring public institutions to compliance, and how NGOs as change agents could be best involved in it.

Findings from qualitative semi-structured interviews revealed the incapacities of public

institutions to adapt to anti-discrimination requirements, as well as significant anti-equality

bias, which ought to be overcome before institutional change can be realized. Furthermore,

research participants described various offensive and defensive strategies institutions use

when reacting against bottom-up pressure. To counter institutional resistance and

simultaneously empower rights-holders in claiming the fulfillment of their rights, a discursive

shift is proposed towards the Duty-Based Approach with Anti-Discrimination Compliance

Monitoring as its central instrument. Institutions as duty-bearers are mandated to take a series

of particular steps in order to implement anti-discrimination and move towards the

compliance world of law observance.

ACKNOWLEDGEMENTS

My foremost gratitude belongs to all of my research participants and their colleagues in civil society organizations, whose determination to make a difference in peoples’ lives by defending them against all kinds of inequalities is just incredible and ever so admirable considering their extraordinary personal investment and sacrifices. Over the past three years, no thought of this project passed through my mind without a feeling of appreciation to your work and urge to fulfill my commitment to you by delivering a (hopefully) useful piece in our continuous action on human rights and equality.

I am especially indebted to Šarlota Pufflerová and Janka Debrecéniová for inspiring me to engage in this eye-opening and self-empowering project, and for giving me precious feedback. I have enjoyed being a part of the team at Citizen, Democracy and Accountability, where I learned most of what I know about uprooting discrimination and fighting for social justice, with zeal and resilience, to the last breath if necessary. I thank my colleague Bibiana Pufflerová for moral support and the second reading of my work promoting its intelligibility.

I would like to acknowledge the important contribution of academics who took time to read various parts of my work and helped me enhance it by their insightful comments. Firstly, I thank Ronny Tikkanen for his supportive supervision on my (at times perhaps too)

‘ambitious’ research. Furthermore, thanks to the University of Gothenburg, the International Sociological Association's Research Committee on Poverty, Social Welfare and Social Policy (RC19), and the Social Work Action Network (SWAN)I enjoyed the opportunity to present my paper to the academic community and benefit from the useful peer review. I am specifically grateful to Rune Halvorsen for a new perspective on the analysis, to Björn Andersson for critiquing the methodology, and to Nair Costa for her constructive opposition.

I thank Ing-Marie Johansson for her patience and flexibility that allowed me to have the time I needed for accomplishing my work; for that I also thank Katarína Nemjová. Last but not least, to my dear classmates from the International Master Program of Social Work and Human Rights, we had such invigorating worldly conversations. Thank you!

A special thanks goes to Greg Soulliere for his limitless support and encouragement to hold my breath underwater in what at times felt like a tsunami wave of information; Greg also excelled as an invaluable linguistic adviser to my text.

At last, I warmly thank Greg, Eli, mom and dad, grandmas and friends for love, trust, and

encouragement, making my long journey ever worthwhile.

TABLE OF CONTENTS

ABSTRACT...II

ACKNOWLEDGEMENTS...III

LIST OF ABBREVIATIONS...VI

TABLES OF FIGURES...VII

1 INTRODUCTION...1

2 CONTEXT...3

2.1 Implementation of Anti-discrimination in Slovakia...4

2.1.1 Difficulties with Discrimination and Anti-discrimination...4

2.1.2 Monitoring Discrimination and Anti-discrimination...6

2.2 Implementation of Anti-Discrimination in the European and International Context...8

2.2.1 European and International Anti-Discrimination Framework...8

2.2.2 Difficulties with Compliance Monitoring in the European Union...10

3 THEORETICAL FRAMEWORK...12

3.1 Human Rights and Equality as Positive Duties...12

3.2 The Positive Duty to Monitor in the Field of Anti-Discrimination...19

3.2.1 Monitoring Discrimination as a Positive Duty...19

3.2.2 Monitoring Non-discrimination Mainstreaming as a Positive Duty...24

3.2.3 Developing Human Rights and Equality Compliance Indicators...26

3.3 Institutions Biased Against Equality and Institutional Change...30

3.3.1 Neo-institutionalist Approach to Institutional Change...30

3.3.2 Institutionalization of Equality in Central and Eastern European Countries...32

3.3.3 Institutional Bias against Equality...34

3.3.4 Relations between Public Institutions and Non-governmental Organizations...36

4 METHODOLOGY OF THE PRESENT RESEARCH...39

4.1 Data Collection Methods...40

4.2 Data Analysis Methods...43

4.3 Ethical Considerations...45

4.4 Challenges and Failings...47

5 FINDINGS AND ANALYSIS...49

5.1 Reasons and Consequences of the Failure of Public Institutions to Implement Anti-discrimination 50 5.1.1 Lacking Capacities and Capabilities for Anti-Discrimination...51

5.1.1.1 Incapacities of public institutions...51

5.1.1.2 In-capabilities of public institutions...52

5.1.2 Unsatisfactory Compliance with the Equality Duty...54

5.1.2.1 Violations of the Duty to Respect: Anti-Discrimination Counter-action...54

5.1.2.2 Violations of the Duty to Protect: Inaction on Eliminating Existing Discrimination...56

5.1.2.3 Violations of the Duty to Protect: Inaction on Preventing Future Discrimination...57

5.1.2.4 Violations of the Duty to Fulfill: Inaction on Fulfilling Human Rights...58

5.1.2.5 Compliance with the Equality Duty: Anti-Discrimination Pro-action...58

5.1.3 Insufficient Involvement of Groups at Risk of Discrimination...59

5.1.3.1 Forms of Insufficient Involvement...59

5.1.3.2 Involvement Dependent on Political and Individual Will...60

5.1.4 Problematic Responding to Pressure on Compliance with the Equality Duty...62

5.1.4.1 Resistance to Pressure Exerted Bottom-up...62

5.1.4.2 Resistance to Pressure Exerted Top-down...65

5.2 Methodology of Anti-Discrimination Compliance Monitoring...66

5.2.1 Subject of Monitoring...66

5.2.2 Object of Monitoring...67

5.2.3 Method of Monitoring...70

5.2.4 Key Conditions for the Involvement of NGOs in Monitoring...75

6 DISCUSSION...76

6.1.1 Solutions to Institutional Anti-Equality Bias...76

6.1.2 Conceptualizing Anti-Discrimination Compliance Monitoring...78

7 CONCLUSION...81

REFERENCES...86

APPENDIX 1...95

APPENDIX 2...98

APPENDIX 3...100

List of Abbreviations

AD Anti-discrimination

ADA Anti-discrimination Act of the Slovak Republic CCPR Covenant on Civil and Political Rights

CEDAW Convention on the Elimination of All Forms of Discrimination against Women CEEC Countries of Central and Eastern Europe

CESCR Covenant on Economic Social and Cultural Rights CoE Council of Europe

CJEU Court of Justice of the European Union

CRPD Convention on the Rights of People with Disabilities

EC European Commission

ECSR European Committee of Social Rights

ECtHR European Court of Human Rights

EU European Union

HR Human Rights

ND Non-Discrimination

NGOs Non-governmental Organizations NHRI National Human Rights Institution PIs Public Institutions

SNCHR Slovak National Center for Human Rights

UN United Nations

Tables of Figures

Figure 1: A framework for action on equality...17

Figure 2: The Four C’s of NGO – Government Relations...37

Figure 3: Conceptualizing AD compliance monitoring...81

“ Never doubt that a small group of thoughtful, committed citizens can change the world.

Indeed, it is the only thing that ever has.“

Margaret Mead

Towards the Duty-Based Approach

Developing the Concept and Methodology of Anti-Discrimination Compliance Monitoring - A View from the Civil Society in Slovakia

1 Introduction

In the ‘worlds of compliance’ typology, Falkner (2010) categorizes Slovakia within a ‘world of dead letters

with European Union (EU) directives transposed in a politicized manner and with frequent non-compliance in regards to enforcement and monitoring (Falkner, 2010).

Such has been the case of deficient implementation of the Antidiscrimination Act (ADA) (Durbáková et al., 2012). Although ADA has been in effect since 2004, it has neither been sufficiently enforced, nor its enforcement monitored. Data regarding prohibited grounds of discrimination (‘equality data’) are not collected by public institutions (PIs), whose decision- making blatantly ignores the need, before anything else, to consider its impact on groups at risk of discrimination. Monitoring is not only a measure of antidiscrimination (AD) preceding and accompanying any policy intervention, but it is also a practice of self-reflection, overseeing and insisting on the duty of the government and PIs to mainstream equality by actively preventing discrimination. Importantly, monitoring is a tool of empowerment for equality groups whose active participation is vital for the process of transition to a more equal society.

Since in Slovakia non-governmental organizations (NGOs) have been the main agents undertaking monitoring initiatives targeting the discrimination of groups whose human rights (HR) they want to protect, the present research draws on their rich experience and suggestions. The initial idea of AD compliance monitoring originated from one such NGO, Citizen, Democracy and Accountability (CDA), with a profound (and arguably the broadest) expertise in cross-cutting AD work

. I have had the honor to be a member of this NGO for several years and felt compelled to devote my degree report to a cause my senior colleagues would deem useful for the expansion of the theoretical base for our advocacy effort. We began collaborating on delimiting the research problem and questions, as well as choosing research participants and preparing the outline for my interviews with them. My interview research (Kvale and Brinkmann, 2009) essentially bears elements of participatory action research (PAR) (Stringer, 1996) (see chapter 4). Our objective has been to involve representatives of other likeminded NGOs in the process of identifying the scope of (non-) 1

Letters which could neither be delivered to the addressee, nor returned to the sender due to non-compliance with postal regulation.

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CDA has for a long time promoted the implementation of the principle of equal treatment in public life using advocacy, monitoring, litigation, and education as their main strategies. It currently has two experts with membership to the legal and socio-economic expert networks of the European Commission. It has a rich experience with carrying out compliance monitoring relevant to AD, such as monitoring of courts, Ombudsman, labor inspectorates, and various public institutions (Občan demokracia a zodpovednosť, 2015).

implementation of AD. We regard their involvement as a means to continuously ensure the goal of ADA – non-discrimination (ND) on all grounds (see chapter 6.1.2). Furthermore, we wanted to engage these NGOs in developing the concept and methodology of monitoring AD measures (such as policies) and practices as duties of PIs stemming from European and international HR law. In our understanding, PIs are all fully or partially publically funded institutions including governing and decision-making authorities, public administration and public service organizations, as well as independent agencies, such as equality bodies.

Members of CDA (myself included) have hoped AD compliance monitoring could highlight the role of PIs as primary duty-bearers in discrimination prevention, while simultaneously becoming a powerful tool for civil society to at least hold PIs to their equality duty and ideally elicit their cooperation in bringing the dutyto bear.

My role in the course of interviewing was to deliberate with participants from NGOs on the research problem of insufficient implementation of AD in Slovakia by PIs and AD compliance monitoring as a possible solution. Our reason for such design was to untangle the underlying causes of this complex issue in a way that accounts for the diverse experience and perspectives of the NGOs’ target groups, frequently at risk of discrimination on a diverse array of grounds. Participants, as unyielding advocates for equality, were asked to share their views to help us address the following research questions:

 Why are AD measures (such as policies) and practices in support of ND of each particular equality group not sufficiently implemented by PIs?

 What could be a suitable concept and methodology of AD compliance monitoring in Slovakia?

 How could marginalized groups at risk of discrimination and NGOs representing them be best involved in AD compliance monitoring creation and application in order to promote the implementation of AD?

The purpose of the first question was explanatory, as we sought to better understand participants’ interpretations of causes leading to PIs’ frequent disregard for the necessity to implement AD. It also prompted insights into problematic patterns in interaction and relationships between PIs and civil society, representing groups widely affected by inequality. The second research question with an exploratory-descriptive purpose was aimed at broadening the knowledge base on monitoring discrimination and AD on specific grounds.

Participants inspired by their experience and knowledge of good practice from abroad

brainstormed on the monitoring content and process, and described some scenarios under

which they considered monitoring feasible, bearing in mind as potential barriers any

previously encountered inhibiting and prohibiting factors. The third question has an

emancipatory purpose, as it directly relates to how participants problematize their

circumstances and perceive the role, capacity, and interest of their NGOs in putting

monitoring in practice and becoming change agents in the situation (Marshall and Rossman,

2011).

For easier orientation, I will clarify the structure of my degree report here. In chapter 2, I provide the context of the enforcement of AD legislation on the national and international level and discuss difficulties with PI compliance. I describe the current state of affairs surrounding monitoring, and use equality data in the implementation of AD policies and practices. The objective of chapter 3 is to anchor the implementation of HR, ND, and AD in the theory of duties which are to be discharged by PIs as duty-bearers with accountability. I examine the role of monitoring, theoretically and legally-framed as a positive duty, and its benefits in enforcing PI compliance. Furthermore, I problematize compliance as a reflection of discourses in the institutional setting within a particular equality regime. I use theories of institutional bias and institutional change to underpin the notion of resistance exhibited by PIs when their compliance is required. Theories of relations between PIs and NGOs aid my interpretation of some dynamics occurring when NGOs exert pressure on the compliance of PIs. In chapter 4, the methodology of the present research is explained to make the reader acquainted with its procedure and limits. I strived to be reflexive of my own struggles with the research process and content of my report. Chapter 5 is dedicated to my findings and the analysis of interviews with the research participants from HR advocacy NGOs. Participant experience is organized according to the theoretical constructs of PI duties, factors influencing compliance, and resistance to pressures on compliance. Then, I present the participants’ versions of HR and AD monitoring methodology, and obstacles to the participation of NGOs in monitoring. In chapter 6, I introduce some solutions to individual and institutional resistance against mainstreaming equality. Eventually, I attempt to lay foundations for the concept of AD compliance monitoring and posit it in the scheme of the duties of PIs. A conclusion is provided in chapter 7.

2 Context

How AD legislation has come into existence and how it is framed in the national, European, and international context is the topic of the current chapter, as well as introducing the major problems surrounding its enforcement. For a long period, turning HR norms into living rights on the ground has been severely hindered in Slovakia. Domestic and foreign literary sources imply the unwillingness of national PIs to take charge of HR implementation and incapability of European and international HR authorities to demand their compliance. Furthermore, I look at the status of discrimination and AD compliance monitoring as a key, but not isolated step in undoing the inequality of various groups in society, and discuss obstacles in its realization.

2.1 Implementation of Anti-discrimination in Slovakia

2.1.1 Difficulties with Discrimination and Anti-discrimination

The Antidiscrimination Act (ADA) was adopted in 2004 in response to the need to implement

EU Employment (2000/78/EC) and Racial Equality (2000/43/EC) Directives. In some

aspects, Slovak AD legislation stretches even beyond the scope of directives, one of them being the judicially enforceable duty to adopt measures for preventing discrimination (Debrecéniová and Dlugošová, 2012). Despite its progressiveness, ADA has not been sufficiently enforced. A decade later, discrimination prevails as a paramount cross-sectional social problem identified by practitioners in NGOs oriented in HR advocacy (Debreceniová and Dlugošová, 2012; Durbáková et al., 2012). However, it is not yet recognized as such by the society at large as confirmed by several public opinion polls.

The general public in Slovakia appears to be passive and often reticent when facing discrimination. While 17% of the populace has felt discriminated against in a quantitative survey by Gyarfášová and Sekulová (2008), another 17% of the sample decided not to defend themselves when discrimination against them was perpetrated by state administration authorities, either due to the feelings of powerlessness more common among disadvantaged groups, or following the underestimation of discrimination as a lesser important social problem. A qualitative survey using focus groups further depicted the notion that despite the popular use of the word discrimination, the general public is quite poorly acquainted with its meaning (Gyarfášová and Sekulová, 2008). Gyarfášová and Sekulová (2008) pointed out that the lack of public awareness can result not only in the improper use of the concept of discrimination, but also in the stereotyping and subjective justification of discriminatory action against minorities. Congruently in the 2012 Eurobarometer, 51% of the public in Slovakia claimed not to know their rights if they were the victim of discrimination or harassment, and 42% believed that fighting all forms of discrimination had not been effective. As the researchers extrapolated, the lack of internalization of the principle of equality by the public could likely be a consequence of both deficient education and/or inappropriate sensitizing to discrimination issues (Gyarfášová and Sekulová, 2008).

Barriers from access to effective legal protection against discrimination were exposed in a recent study by the Centre for Civil and Human Rights, a Slovak NGO (Durbáková et al., 2012). It conducted three different empirical surveys comprising a representative sample of the general public, 124 respondents from NGOs promoting the rights of disadvantaged groups, and 95 Roma respondents from socially excluded environments. Findings in all three groups were dominated by the lack of trust in courts and institutions to successfully resolve discrimination, experiences of poor law enforcement and prolonged court proceedings, reinforced by having scarce information on where to seek help and means for legal defense.

In the same study, the NGO scrutinized 90 court decisions. Numerous flaws in the application of AD legislation were highlighted, including courts neither detecting discrimination nor imposing deterring sanctions on those who discriminate. Such deficiencies significantly reduce the effectiveness of legal protection against discrimination (Durbáková et al., 2012).

Besides courts, other crucial institutions entrusted with enforcing AD have been reported to

be strikingly ineffective. The Slovak National Center for Human Rights (SNCHR) was said

to have failed from its very inception in its function as a National Human Rights Institution

(NHRI)

and National Equality Body (further referred to as ‘equality body’)

(Debrecéniová and Dlugošová, 2012). Its failing led to an institutional audit by the former Division of Human Rights and Equal Treatment of the Office of the Government (Úrad vlády Slovenskej republiky, sekcia ľudských práv a rovnakého zaobchádzania, 2011). Eventually, in 2013 SNCHR lost its accreditation as NHRI (ICC, 2013). Inspectorates of labor have not been willing or capable of tackling discrimination that emerged during their inspections, and they have not considered acting on its prevention (Debrecéniová and Pufflerová, 2011). The Public Defender of Rights (further referred to as ‘Ombudsperson’) faced criticism for being invisible to the public and neither speaking against HR violations, nor advocating equality (Magula and Mezianová, 2003). This has changed since Jana Dubovcová took office in 2012

.

After the general election in 2010 a new hope for institutionalizing equality emerged. The Deputy Prime Minister for Human Rights and National Minorities and its advisory administrative body the Section of Human Rights and Equal Treatment were established under the Office of the Government of the Slovak Republic. The Council of the Government of the Slovak Republic for Human Rights, National Minorities and Gender Equality was also founded in 2010 and entrusted with the responsibility of coordinating HR policy efforts and activities of the government and public administration. Using this institutional apparatus, the Council was able to support a record number of civil society projects related to AD (130 projects in 2011 as opposed to 27 in 2009) and managed to allocate an unprecedented amount of resources for their execution (2,257,000€ in 2011 compared to 236,630€ in 2009) (Debrecéniová and Dlugošová, 2012). Unfortunately, the period of institutional coverage of equality and human rights did not last long. After merely two years in existence, a large portion of this coverage was eliminated by a new government that took office following the premature general election in March 2012.

It was days before this election that I conducted interviews with participants from NGOs.

Their accounts emitted both hope and skepticism about the continuation of the governmental action on equality (see chapter 5.1.3). Indeed, some of the feared changes did take place immediately in 2012. The position of the Deputy Prime Minister for Human Rights and 3

National Human Rights Institutions are established in compliance with the Paris Principles and supported by the United Nations Office of the High Commissioner for Human Rights to “promot[e] and monitor[...] the effective implementation of international human rights standards at the national level.” (Office of the High Commissioner for Human Rights, 2012b)

4

The EU equal treatment legislation requires Member States to set up equality bodies as “independent organisations assisting victims of discrimination, monitoring and reporting on discrimination issues, and promoting equality.” (Equinet, 2013)

5

Ombudsperson Dubovcova has defended the rights of Roma, migrants, LGBT, people with disabilities, older people and children both in her activities and in media. For defending HR of Roma against the Police brutality Ombudsperson Dubovcová has faced criticism from the government and threats of her office being moved to the second largest city (Pravda, 2015).

National Minorities was removed, and its guiding and coordinating duties regarding HR and equality (including financing action plans for prevention of discrimination) were split (Debrecéniová, 2012). Debrecéniová describes (2012) how fragments of these obligations were then superficially transferred to other less relevant departments without adequate financial and human resources allocated for their fulfillment. Conversely, fifteen staff positions from the abolished deputy were reassigned to the newly-created position of Deputy Prime Minister for Investments, who is in no way connected to the equality apparatus (Debrecéniová, 2012). As the equality institutional structure in Slovakia does not seem any more stable—and possibly less—the impetus for pro-equality action has grown ever more relevant.

2.1.2 Monitoring Discrimination and Anti-discrimination

For a long time, the Slovak government has been criticized by international actors (e.g., the UN Committees’ recommendations) for not making an effort to monitor the (in)equality situation in the country. Exceptionally alarming is the near absence of data collecting regarding prohibited grounds of discrimination (further referred to as ‘equality data’), which precludes any action or policy from having the potential to bring a sustainable positive change in the status of disadvantaged groups.

The sole form of official data gathering is a population census once a decade. It covers only some discrimination grounds like sex, age, religion, and ethnicity, and in a very limited fashion. Moreover, the census held in 2011 resulted in turmoil that exposed the incompetence of the PIs that organized it. Chudžíková (2012) suggests that it could have undermined the willingness of the public to participate, as well as the trustworthiness of data collected in the census. Nonetheless, Debrecéniová and Dlugošová (2012) suspect that PIs have a tendency to use the data despite being inaccurate and outdated. PIs do so, for instance, when they are required to submit ‘some evidence’ to the European Commission (EC) or other external AD compliance enforcement body, or fill out a problem background box in a mandatory action plan. PIs adopt policy measures based on their general knowledge instead of grounding them in data-based analysis (Debrecéniová and Dlugošová, 2012).

Besides the census, there has been one isolated initiative worth mentioning aimed at

gathering data on the situation of Roma carried out under the auspices of the United Nations

Development Programme (UNDP) in cooperation with the Plenipotentiary for Roma

Communities and municipalities in Slovakia. Roma settlements were surveyed twice,

including 1575 Roma settlements in 2004 (Ministerstvo vnútra Slovenskej Republiky, 2004)

and 1070 Roma settlements in 2014 (Ministerstvo práce, sociálnych vecí a rodiny Slovenskej

Republiky, 2014), in order to map their spatial distribution, infrastructure, access to services

(social, education, healthcare) and activity of their residents (political, cultural and

economical). Despite the data most certainly being invaluable considering the general lack of

data in this area, it is also important to bear in mind that said data is grounded in the group-

identification of Roma ascribed to them by primarily non-Roma researchers from outside of

settlements who were not concerned with the discrimination of Roma per se (UNDP, 2014).

This can hardly fully substitute for sensitive ethnic data collected in an appropriate manner via means of voluntary self-identification with the potential to establish the evidence of inequality as a shared experience of Roma (see chapter 3.2.1).

In 2012, the project entitled ‘Analysis of needs in the area of equality data collection and identification of measures for the improvement of monitoring equal treatment’ was initiated by the Office of the Government in partnership with a diverse range of state, regional and non-governmental stakeholders. Their aim was to respond to the lack of reliable equality data (Kotvanová, 2012). It was portrayed in a collection of expert articles as appearing in various environments and concerning several marginalized groups, mainly the Roma. Although the issue itself and some of the expert articles were extremely timely, the project overall did not seem to be handled in a systematic manner, nor were the outcomes (to my current knowledge) reflected by any significant changes on the ground.

Monitoring initiatives have otherwise been scattered and almost exclusively located in the non-governmental sector. Nevertheless, they have currently grown stronger than ever, with many grass-roots as well as comprehensive studies emerging. The broad monitoring portfolio of NGOs includes a monitoring report on the fulfillment of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) based on concluding observations by the CEDAW Committee (Mesochoritisová and Zezulová, 2011); on women’s access to contraception (Citizen, Democracy and Accountability, Freedom of Choice and Center for Reproductive Rights, 2011); on the status of the implementation of the strategy for inclusion of Roma (Lajčáková, 2013); on the systemic overrepresentation of Roma children in special education (Gallová Kríglerová et al., 2009); on the discrimination in employment faced by male and female migrants (Hlinčíková, Lamačková and Sekulová, 2011); on the needs of people with disabilities based on the Convention on the Rights of People with Disabilities (CRPD) (Národná rada občanov so zdravotným postihnutím v SR, 2011); on the discrimination and violence against older people (Fórum pre pomoc starším, 2012); and on the unequal treatment of LGBT people in psychological counseling (Smitková and Kuruc, 2012), to mention a few. It is beyond the scope of this report to go further into analyzing specific monitoring outcomes of NGO initiatives. Yet, I do deem it important to draw attention to them as a source of knowledge and experience to fuel action in support of AD measures (such as policies) and practices.

I will however mention one of NGOs’ initiatives that is particularly relevant, as it presents an example of AD compliance monitoring. CDA, with which I have collaborated on this research, surveyed various public institutions to identify if and how they carry out their duty under ADA to monitor equal treatment and gather equality data within their institutions (Hodoňová, 2010)

. CDA submitted requests for information

to 24 PIs. The responses received corroborated the suspected non-existence of the afore-mentioned practices. Neither 6

CDA has also surveyed 59 private organizations such as employer associations (Hodoňová, 2010) which I left out here since my report focuses on primary duty bearers.

7

organization answered all questions, nor were they aware of their duty to observe the principle of ND in their so doing. Many responded that they did not collect equality data, while some even objected that the collection of such data is prohibited by the Act on Protection of Personal Data. Importantly, the CDA’s AD monitoring revealed a pressing need for equality data collection, analysis, and use as a baseline for policy-making and implementation on the part of PIs. It also exposed the fear of breaching the law (The Slovak Republic, 2002) (or feigning such fear to excuse inaction as indicated in chapter 5.1.4.1) expressed by institutions (Hodoňová, 2010). In response to the breach of privacy objection, Debrecéniová and Dlugošová (2012) rightfully argue that the law does not preclude the collection of data as long as it is voluntary, anonymous, and the participants are not identifiable (see chapter 3.2.1).

The CDA’s survey is different from, for instance, shadow reporting to the UN committees in the fact that it directly targets the breach of AD proactive duty of PIs as opposed to targeting discrimination in access to HR or other HR violations. Thereby, it could be considered a form of meta-monitoring and a case of AD compliance monitoring, which is the focus of my report. This case was in fact among the main inspirations behind our research with CDA.

2.2 Implementation of Anti-Discrimination in the European and International Context

2.2.1 European and International Anti-Discrimination Framework

European AD legal framework consists of two major sub-systems of rules relating to the principle of ND. One sub-system includes the Council of Europe (CoE) and the European Court of Human Rights (ECtHR) which oversee the implementation of the European Convention on Human Rights (ECHR). The other sub-system is composed of the European Union (EU) and European Court of Justice (renamed to the Court of Justice of the European Union [CJEU] upon the Treaty of Lisbon in 2009) which are responsible for monitoring the implementation of equality directives of the EU (FRA, 2011).

The CoE sub-system is composed of 47 member states, one of them being Slovakia, which acceded to the ECHR and are thereby legally bound to guarantee HR to everyone within their jurisdiction. Equal treatment in the enjoyment of these rights and the prohibition of discrimination is guaranteed by Article 14 of the ECHR on a non-exhaustive list of grounds.

Since its establishment in 1950, the ECHR has been transformed by protocols. The most crucial of them is Protocol No.12 from 2000 which has expanded the scope of the prohibition of discrimination by guaranteeing equal treatment in the enjoyment of rights under all

An official request for information binds all PIs to respond within a limited time frame of 8 days. A public official who fails to respond can be sanctioned by the fine up to 1650 Euro and a ban on activity for up to 2 years (The Slovak Republic, 2000).

national laws. There are still many states which have not ratified Protocol No.12 (including the Slovak Republic); nevertheless Article 14 takes precedence over national laws. The implementation of ECHR by the member states is reviewed by ECtHR via hearing cases of violation of the ECHR (including Article 14 in connection with other articles) committed by member states. The principle of ND governs a number of other CoE documents, of which the most important is the 1996 version of the European Social Charter (ESC) monitored by the European Committee of Social Rights (ECSR) (FRA, 2011). Along with trends in the HR discussion, the CoE’s Steering Committee for Human Rights continues to generate new conventions and recommendations coupled by monitoring mechanisms, such as the fairly recent Recommendation CM/Rec(2010)05 on measures to combat discrimination on the grounds of sexual orientation or gender identity (Council of Europe, 2010).

The EU sub-system is composed of 27 member states which are legally bound by Article 13 inserted into the ‘Treaty establishing the European Community’ by the Treaty of Amsterdam (1999). It provided a legal basis for adopting mea sures to combat discrimination on the grounds of sex, race or ethnic origin, religion or belief, disability, age and sexual orientation, and allowed for the subsequent adoption of two equality directives in 2000. The Employment Equality Directive (The Council of the European Union, 2000b) prohibits discrimination on the basis of sexual orientation, religious belief, age, and disability in the area of employment.

The Racial Equality Directive (The Council of the European Union, 2000a) prohibits discrimination on the basis of race or ethnicity in the context of employment, but also in accessing the welfare system and social security, and goods and services. In 2006, the third directive (2006/54/EC) was adopted on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

The EU Charter of Fundamental Rights (‘the EU Charter’), inspired by constitutions of member states, the ECHR and the United Nations (UN) HR treaties, was proclaimed by the EU and its member states in 2000, first as a declaration. In 2009, it was altered by the Treaty of Lisbon to become legally binding for all EU institutions as well as member states, although the latter are only bound when implementing EU law. Article 21 of the EU Charter (The European Parliament and the Council, 2010) contains a prohibition on discrimination on the grounds of sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation...[and] nationality. CJEU reviews individual complaints regarding violations of the EU Charter by member states, and gives guidance to national courts on the correct interpretation of EU law.

Generally, in a similar manner that the international HR law takes precedence over national

laws, a hierarchy has formed in which legal systems coordinate and oversee one another in

the implementation of AD. Although all EU member states are signatories to the ECHR, the

EU itself has not yet accessed the ECHR, which makes it impossible for individuals to lodge

a complaint against the EU and before the ECtHR for not observing the ECHR (for example,

if individuals are discriminated against by the EU institutions or agents). Legal steps have

been taken on both sides (the Lisbon Treaty and Protocol 14 to the ECHR) so that the EU can

be supervised by external monitoring bodies. However, it is not clear how long negotiations will take (FRA, 2011).

All member states of the EU sub-system, including Slovakia, are party to the UN HR treaties

, which also contain the prohibition of discrimination monitored by conventional mechanisms (committees) and extra-conventional mechanisms (UN special rapporteurs, representatives, experts and working groups) (United Nations, 2013). Many states also allow individuals to file a complaint against them using mechanisms established in some cases (CCPR, CEDAW, CRPD) under optional protocols (Interights, 2011).

2.2.2 Difficulties with Compliance Monitoring in the European Union

Measuring compliance of member states with the EU law by the EC has not been sufficiently effective for more reasons than one (Fredman, 2008; Hartlapp and Falkner, 2009; Verloo and Van Der Vleuten, 2009). Data in official statistics of the EU seem unreliable as they concentrate rather on the EU response to non-compliance than the depiction of states’ non- compliance. Thereby, knowledge is missing of what non-compliance means in each member state and how many of states’ failures to comply go unaddressed (Hartlapp and Falkner, 2009). On top of that, Hartlapp and Falkner (2009) revealed bias in the EC’s assessment on several levels. Of 90 non-compliance cases studied, 40% were not subjected to infringement procedures (ending with a judgment by CJEU), and of those that were, 95% underwent the procedure for failing to notify the EC about the transposition of the EU law (one of the least serious infringements that can be detected by a simple yes or no indicator), while correctness of the EU law transposition into the national law was not genuinely scrutinized. Also, compliance with some EU directives was examined more often than others. Moreover, some countries were taken to CJEU for infringement procedures more often than others, and not only owing to their lower performance. Usual suspects seemed to be treated more strictly (Verloo and Van Der Vleuten, 2009).

Hartlapp and Falkner (2009, p.297) believe that reasons for EC’s monitoring failures besides not having enough qualified personnel are the lack of “the legal power to actively monitor non-compliance in the member states during the application phase, i.e., to intervene in national administrative routines or to send its own inspection teams.” To avoid miscommunication or manipulation by states in the EU law transposition procedure, Hartlapp and Falkner (2009) recommend using the information that member states provide on their 8

Once the EU is also bound by the Charter individuals might consider filing a complaint, for instance, about the lack of oversight by the EU over the implementation of the principle of ND in the area where they faced discrimination, thus pushing the EU to strengthen its compliance monitoring of member states. I shall warn the reader here that this is my unverified idea which might not be feasible in reality. One major flaw I can already foresee is that it shall upon an individual to file such a complaint. AD compliance monitoring of the EU should be systemic, not based on an individual justice model.

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ICCPR, ICESCR, ICERD, CEDAW, CAT, CRC, UNCRPD.

transposition purely as an indicator when judging the correspondence of the EU law with a reality on the ground in a member state (for example, based on detailed case studies

).

Moreover, Fredman (2008) suggests using the EU budget as a tool to support research and cooperation among equality stakeholders and to follow-up on reforms ensuring they are not only formal. I do concur that both suggestions would probably be very beneficial in enforcing the compliance of Slovakia with AD legal framework of the EU.

Unfortunately, the lack of pressure in the rest of the EU countries on implementing equality mainstreaming as a proactive duty persists since the EU has adopted soft law and the Open Method of Coordination (OMC). Soft law is characterized by non-binding provisions with vague aims and little effort made in monitoring and sanctioning officials for non-compliance.

It is thus much less effective than the hard law approach employed for example in transposing the AD law into national laws (Krizsan, Skjeie and Squires, 2012). OMC falls short mainly on two aspects. Firstly, it stands on peer review which does not sufficiently facilitate the debate and exchange of good practice among member states. Secondly, governments do not see themselves as learning organizations (see chapter 6.1.1), and they fail to consult civil society in a deliberative participatory way. This prevents them from forming strong partnerships capable of bringing change (Fredman, 2008). As a result, Krizsan, Skjeie and Squires (2012) remark, the monitoring of ND mainstreaming has not been vigorous.

Verloo and Van Der Vleuten (2009) contribute to this assessment by criticizing relative monitoring which has replaced absolute monitoring. Imposing no sanctions on the states for poor performance and compliance, besides naming and shaming

, has a meager reputational cost. Furthermore, the EC and CJEU may want to keep their reputation as guardians of EU legislation while member states may want to keep their joint reputation uncompromised instead of losing their own reputation in a blame game. Maintaining the status quo is advantageous for both sides but detrimental for the equality agenda. The politics of ranking (sorting states hierarchically according to their results) adds to the window-dressing character of equality mainstreaming. The meaning of the improvement in performance is distorted when laggards (Slovakia) are compared to pioneers (Sweden) by which they are completely out-performed.

Consequently, the meaning of quality is stretched from absolute to relative in which some countries do better if other countries do worse, causing the equality standard to shrink.

However, drawing comparisons to better performers and pointing to their “good practice” can sometimes be useful to civil society actors and other stakeholders as an incentive pushing the 10

Some participants in the current research were engaged in drafting compliance case studies on AD implementation for EC.

11

A strategy to draw public attention to failures of a particular state in order to bring it to compliance.

12

In a private conversation with my colleague from CDA, she compared the exchange about the implementation of ND mainstreaming during her participation in a meeting of EC to discussing a science fiction script.

government to undertake equality action the way other countries have done (Verloo and Van Der Vleuten, 2009).

3 Theoretical Framework

The objective of the following chapter is to ground the implementation of HR, ND and AD in the theory of positive (proactive) duties which are to be discharged by PIs as duty-bearers with accountability. I explore social justice theories that go beyond the individual level to acknowledge structural causes and outcomes of discrimination. In addition, I look at the concept of monitoring from various angles, as means to gain evidence of a group disadvantage in form of equality data, as well as a strategy of ND mainstreaming in order to involve equality groups, target AD measures and oversee their transformation into reality.

Importantly, I examine monitoring from the perspective of duty, give examples of successful compliance monitoring carried out in some EU member states, while I also discuss implications for its dawdling and insufficient enforcement in others. Finally, I problematize compliance as a reflection of discourses inside the institutional setting within an equality regime in order to emphasize the impetus for addressing challenges such as PI resistance or the inability to make AD compliance monitoring a successful practice.

3.1 Human Rights and Equality as Positive Duties

The UN Committee on Economic, Social and Cultural Rights has been active in defining concepts and measures to guarantee substantive equality of protected groups, in other words to ensure their equality in reality and not only formally (Interights, 2011). In the realms of its commitment, this UN committee has detailed the concept of three major duties (alternatively

‘obligations’) first introduced in 1997 by HR experts in the Maastricht Guidelines (United Nations, 2000). Firstly, duty to respect requires the state to refrain from interfering with the enjoyment of rights. Secondly, duty to protect requires the state to prevent violations of rights by third parties. Thirdly, duty to fulfill requires the state to take appropriate legislative, policy, administrative, budgetary, judicial and other measures towards the full realization of HR (General Comment No.16, 2005; General Comment No.20, 2009).

Different interpretation of duties was elaborated in the ruling of the ECtHR. Negative (or reactive) duties obligate the state to not interfere with rights. Positive (or proactive) duties demand that the state does not remain passive and take all measures necessary to prevent discrimination or eliminate it by imposing sanctions on any discriminating subjects and providing remedies to those who have been discriminated against (Akandji-Kombe, 2007).

Following the understanding put forth by the ECtHR, I believe positive duties would encompass both the duty to protect and fulfill rights (see the Scheme of Duties I created in the Appendix 1).

Another proactive string in duty-oriented thinking that has been in development is the

concept of due diligence. Due diligence was mentioned in several general comments issued

by the UN committees (CEDAW, CERD, CESCR) as an obligation to prevent, investigate, punish and remedy gender and racial-based violence (Interights, 2011)

, which, in my opinion, seems to resemble the duty to protect. The ECSR has arguably most expanded due diligence by stipulating that states must “monitor the impact of their policies and legislation on the most vulnerable segments of the population, thus imposing on them the positive duty to promote equality” (de Schutter, 2011, p.6)

.

Soon after the EU equality directives were enacted, McCrudden (2001) categorized AD into three justice models that are still very relevant and popular today. The individual justice model aims to eliminate discriminatory considerations from decision-making that concerns individuals. In this model, an individual plaintiff makes a complaint of discrimination to a court or enforcement agency and obtains a remedy. However, deep structures of institutional discrimination that reinforce inequalities based on belonging to a certain group remain unaddressed (McCrudden, 2001).

The group justice model aims to improve the position of disadvantaged groups by evaluating structural inequalities in the opportunity and result outcomes of decision-making. It has been vital in prohibiting ‘indirect discrimination’, characterized by seemingly neutral rules disproportionally affecting a particular group. Indirect discrimination is predominantly disclosed by monitoring and collecting statistical evidence, and remedied by positive action measures (McCrudden, 2001).

The participatory justice model goes beyond the other two models, to "require government and public bodies to weave policies of equality and non-discrimination into the fabric of decision making across all spheres of government. In short it means to 'mainstream' equality issues in public policy, and to do so by involving the affected groups themselves"

(McCrudden, 2001, p.257). It enables those previously marginalized to have a voice in the decisions that shape their lives and improve their situation. As opposed to the individual model, and partly also group model, McCrudden (2001) defines participatory justice as proactive rather than reactive, anticipatory rather than retrospective, participatory rather than limited to small groups of decision-makers, and integrated in all stages of policy making and implementing.

Impact assessment (certainly a form of monitoring as underscored by the ECSR’s interpretation of due diligence) is one of the central instruments of the participatory model (see chapter 3.2.2). It ought to be conducted early, comprehensively, transparently, and in 13

In 2011, the proactive concept of due diligence was further adapted by John Ruggie, UN Special

Representative for Human Rights and Business, stating that “[i]n order to identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence. The process should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are

addressed” (UN Special Representative for Human Rights and Business, 2011, p.16)

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The requirement of impact assessment under due diligence is increasingly being used to emphasise the state’s duty to subject itself to due diligence (de Schutter, 2011) as well as the state’s duty to enforce due diligence

a participatory discussion among those who make policies and those who are affected by them. More than a consultation with the affected persons, participatory impact assessment enhances democracy by building a constructive relationship between the government and civil society, stresses McCrudden (2001) (see chapter 3.3.4). In the absence of impact assessment, there is the danger that equality will not be considered a priority by decision- makers and will be submerged in other issues (see chapter 5.1.2.3). Although it is inarguable that the participatory model has the broadest impact, the other two models serve their purpose and should not be disregarded. All three models are complementary and indispensible (McCrudden, 2001).

After the inception of duties to respect, protect, and fulfill HR, it became logical that equality (inversely ND) in access to these rights should also be conceptualized as a duty. This task has been undertaken mainly by Sandra Fredman (2005; 2008; 2011; 2012). Fredman deems it useful to “consider each right as giving rise to a cluster of obligations, some of which require the state to abstain from interfering, and others which entail positive action and resource allocation”(Fredman, 2008, p.69). Fredman’s (2008) rationale for “focusing on different types of duties rather than different types of rights [is that it] gives us a more sophisticated tool for analysis and implementation” (Fredman, 2008, p.70). In their submission to the Cabinet Office of the United Kingdom (UK), Fredman and Spencer (2006) articulated how institutionalization (see chapter 3.3.1) of the positive duty to promote equality in the UK (or to adopt measures to prevent discrimination as more narrowly framed in Slovakia) can address the limitations of the individual justice model (McCrudden, 2001). This model focused on AD in individual cases over ND mainstreaming has been championed by the EU (Krizsan, Skjeie and Squires, 2012) and partly also in the Slovak equality regime (Durbáková et al., 2012).

Under the positive equality duty, the responsibility for identifying and addressing discrimination shifts from an individual to an institution, even where no complaint has been made and no single individual can be held responsible. For instance, in the case of the over- representation of Roma children in ‘special classes’, the burden of proof

shifts to those institutions in position to remedy inequality in such schools, school inspection, and the Ministry of Education, irrespective of having caused inequality or not. Through the lens of positive duties, if PIs have not caused the over-representation by their action (enacting segregation policies), they are still accountable for their inaction that led to segregation (not hiring teacher assistants to help integrate students or not taking other preventive measures).

Alongside the focus being shifted from the retrospective to preventive action, institutions are prompted to mainstream equality into policy making and implementing (see chapter 3.2.2 for means of equality mainstreaming). Furthermore, the motivation to act within an institution shifts from negative, such as reacting to complaints, to positive, like reviewing its own policies or practices, and implementing pro-equality reforms.

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“A rule of evidence that requires a person to prove a certain fact or the contrary will be assumed by the court.

More generally, it is the responsibility of proving a disputed charge or allegation” (Interights, 2011, p.246).

Transforming from reactive to proactive approaches promotes the shift from the understanding of inequality as stemming from discrimination to acknowledging its broader causes (Fredman and Spencer, 2006). Looking at the aforementioned example of Roma children from the proactive perspective means not only seeing them as segregated in schools due to their ethnicity, but also owing to the prior systemic lack of opportunities of these children and their family or community members for education and integration. Such insight cuts deeper into the structure of inequality and pinpoints particular failures of particular duty- bearers in undoing the inequality of Roma. To unpack the given example yet a step further, because in the reactive model a there is a tendency is to look at each case separately while shying away from the big picture, inequality can be, and in Slovakia it often is, reduced to ethnic discrimination which a Roma person has to fight in court as an individual. Structural factors such as scarce educational and work opportunities do not come under scrutiny, unless their lack is indicated by statistical and other group-based evidence (see chapter 3.2.1 for the use of group-based evidence). Thereby, the dots stay disconnected, and preventive measures such as positive action are not seen as a necessary solution to what is commonly (and ethnocentrically) called “the Roma issue”. Proactive reasoning well underpins the case for equality data utilization regarding prohibited grounds of discrimination in Slovakia.

In order to implement the principle of equality in every aspect of PIs’ action, it is crucial to specify what equality is and how it can be best delivered. Fredman and Spencer (2006) produced a four-dimensional definition of equality and complemented each dimension with a duty. Equal life chances as the first dimension was matched with the duty to ensure equal opportunities and representation for groups at risk of discrimination. The second dimension, equal dignity and worth, entails the duty to promote respect and eliminate stigma, harassment, degrading treatment and violence against groups at risk of discrimination. The third dimension, affirming and accommodating difference, embodies the duty to promote shared values, while accommodating different identities, aspirations and needs of equality groups, such as ‘reasonable accommodation’

. Finally, the fourth dimension, equal participation, implies the duty to involve equality groups in decision-making in both institutional structures and processes on an equal and participatory basis (Fredman and Spencer, 2006). The participatory side to the mainstreaming of equality is congruent with McCrudden’s (2001) participatory justice model.

The question remains regarding how the principle of equality can be implemented besides shifting the focus from rights to duties, to avoid, for instance, the compliance issue of ‘dead letters’ (Falkner, 2010) prevalent in Slovakia. Fredman and Spencer (2006, p.3) elaborated on the delivery of the equality duty that would be outcome-focused, “goal oriented, action based and progressive over time.” By this formulation, they seek to avoid the over- bureaucratization of the process and vagueness of content that commonly hinder the 16

‘Reasonable accommodation’ is the concept introduced by Art.2 of CRPD defined as “necessary and

appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. CRPD specified that the denial of reasonable accommodation constitutes discrimination on the ground of disability.

Review Evidence

Consultation

Gaining information ◦ Insight ◦ Participation ◦ Information dissemination

DiagnosisDecide ‘necessary and proportionate’ stepsAction Plan Implementation Monitoring

Figure 1: A framework for action on equality

implementation of the equality duty, as in the case of United Kingdom (UK) (Fredman and Spencer, 2006) or Scandinavia (Craig, 2012). However, it ought not to be forgotten that these countries are distinguished by the implementation pattern of respect for the rule of law which Slovakia in Falkner’s (2010) assessment precisely lacks, therefore additional steps might be required aimed at overcoming institutional resistance (see chapter 6.1.1).

The equality duty according to Fredman and Spencer (2006) is to be discharged on two levels, general and specific. The general duty, they argue, should impose the same obligation on each authority, to “…take such steps as are necessary and proportionate to eliminate discrimination and to achieve the progressive realization of equality (as defined)” (Fredman and Spencer, 2006, p.9). Specific duties, in contrast, could be determined by each institution as its own statutory code of practice, although it would always be composed of a series of steps, particularly “to get baseline evidence on discrimination and equality across its functions; to diagnose the causes of inequality identified; to consult; to have an action plan setting out the necessary and proportionate steps it proposed to take; (to take the necessary and proportionate action on an ongoing basis) and to monitor progress” (Fredman and Spencer, 2006, p.11). Thereby specific duties would provide guidance on what steps should be included at all time, while leaving enough autonomy for each authority to decide what action is ‘necessary and proportionate’. Such an approach has a potential to reduce the danger of ‘regulatory trilemma’

(Fredman, 2012). To ensure transparency, all stages of the process of delivering equality duty would be open to participation of the actors from civil society, as well as compliance monitoring by equality bodies and various inspectorates. This model is illustrated in Error: Reference source not found bellow created by Fredman and Spencer (2006).

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The regulatory trilemma concept that Fredman (2012) uses refers to the state in which law attempts to change organizational behavior by authoritative command, which may have a triple negative effect. It may be ignored by an organization, damage its ability to produce solutions based on voluntary initiative, and it can damage the law itself due to its perceived ineffectiveness and illegitimacy.

The whole process starts by obtaining baseline evidence on (in)equality, in other words,

‘equality data’ (Makkonen, 2007a) (see chapter 3.2.1) while equality groups are consulted all throughout the process. With extreme relevance for the delivery of the equality duty in Slovakia, Fredman and Spencer (2006) warn public authorities, that “the lack of quantitative evidence for a problem cannot be an excuse for inaction. Qualitative evidence, including from consultation, may be the basis for action in the absence of, or until, an authoritative evidence base is available for decision-making“(Fredman and Spencer, 2006, p.12). Then, even if there is little equality data available in Slovakia at the moment, public authorities have the duty to consult with civil society actors, primarily those representing groups at risk of discrimination, in a genuine participatory way to obtain the ground for initiating action.

Authorities should avoid barriers to consultation, which can be physical, attitudinal, financial, cultural, or stemming from an inappropriate choice of consultation method, by identifying them prior to consultation on a case-by-case basis (Reid – Howie Associates, 2002). Reid – Howie Associates (2002) suggest that this is best done by asking potentially affected groups how their active participation can be promoted most effectively, while not excluding “hard to reach groups”. Any group, less or more homogenous, can be included in consultation when a suitable range and combination of outreach methods is applied (Reid – Howie Associates, 2002).

Participation serves two functions, both of which are crucial in proactive models – as means to promote equality based on the perspective of groups experiencing inequality, as well as an end to empower the ones whose voice has been marginalized (Fredman, 2005). Primary roles of participation in the consultative process concern imparting and receiving information, co- deciding, and monitoring compliance of duty-bearers with the general and specific equality duties. Providing information, for instance on results of all monitoring processes or reasons justifying a decision against the criteria of necessity and proportionality, enhances transparency in decision-making and the accountability of decision-makers to the public.

Particularly for those affected by decisions, it also opens up space for a response, such as objecting to a discriminatory decision. Information should be conveyed by authorities in an accessible and intelligible form, which could be further specified under ’the duty to publish’

(Fredman, 2005). Gleaning information during consultation from groups, whose equality outcomes are affected by decision-making, is vital for keeping the process working from the bottom-up. Equality groups are in the best position to identify inequality and propose changes, by which greater legitimacy and efficiency in policy-making is achieved (Fredman, 2005).

In the spirit of the concept of deliberative democracy

Fredman (2005) describes decision- making as a learning process. Goals can be redefined as a result of discussion, in which 18

Deliberative democracy is a democratic decision-making process that allows for participatory discussion of relevant parties, including all those with power to make decisions and those affected, and leads to a decision on action binding for all parties which should be taken in the most effective way. Such decision must be justifiable “by reasons which participants sincerely believe to be persuasive to others” (Fredman, 2008, p.36), such as choosing public interest over self-interest.