Between Strict Scrutiny and Misunderstanding: Worrisome Lessons from Eastern Europe in the Field of Equality Law

The paper focuses on the analysis of the role and place of non-discrimination law in Eastern Europe. It offers a deep dynamic assessment of the evolution of the local law and practice in the Baltic States in the light of the letter and the spirit of ECHR and EU law, including the case law of the ECJ and the ECtHR. The analysis demonstrates a cleavage between the way in which direct and indirect discrimination is implemented and applied in practice in the Baltic States, and the expectations of the ECHR and the EU. The paper argues, using various examples from legislation and the court practice regarding ethnic and national minorities, that fundamental aspect of the fight against discrimination escape proper understanding and application. The paper looks at possible solutions to the problem, looking in particular at the usefulness of the US theory of the levels of scrutiny, arguing that it could be beneficial in the East European context.