Equality in Practice EQUAL RIGHTS TRUST Despite This, Evident Inequality and Discrimination Persists in All Areas of Ser- IMPLEMENTING SERBIA’S EQUALITY LAWS

The Equal Rights Trust is the global centre for excellence in equality law. Our vision is an equal world and our mission is to eliminate discrimination and ensure everyone can participate in society on an equal basis. We work in partnership with equality defenders to secure the adoption and implementation of equality laws.

In 2009 the Republic of Serbia adopted the Law on the Prohibition on Discrim- ination (LPD), which, alongside other important pieces of equality legislation and underpinned by a Constitutional protection for equality, establishes an almost comprehensive regime for the protection of the rights to equality and non-discrimination. Equality in Practice EQUAL RIGHTS TRUST Despite this, evident inequality and discrimination persists in all areas of Ser- IMPLEMENTING SERBIA’S EQUALITY LAWS

- bian life. Just short of the LPD’s tenth anniversary, this study finds evidence of rightsnumerous to equality flaws in and the non-discrimination implementation of in Serbia’s practice. equality and non-discrim ination framework. These flaws are limiting the effective realisation of the inter alia, evidence of aThis lack study of public identifies awareness the key of equality factors thatlaw andare concepts,preventing high Serbia’s court frameworkcosts, frag- mentedon equality legal from aid provision,providing effectivephysical andprotection. structural It finds, barriers preventing access Equality in Practice Equality to courts, procedural delays, mistrust in the judiciary, and weaknesses in the current legislative framework.

The study notes that none of these issues are insurmountable and concludes by making a series of recommendations to the state to this end. By following these recommendations, it is hoped that the aspiration evident in the LPD of an equal Serbia, may begin to come to fruition.

This publication was produced with the financial support of the European Union. Its contents are the sole responsibility of the Equal Rights Trust and do not necessarily reflect the views of the European Union.

www.equalrightstrust.org EQUAL RIGHTS TRUST EQUAL RIGHTS TRUST

Equality in Practice IMPLEMENTING SERBIA’S EQUALITY LAWS

London, January 2019 The Equal Rights Trust is the global centre for excellence in equality law. Our vision is an equal world and our mission is to eliminate discrimination and ensure everyone can participate in society on an equal basis. We work in partnership with equality defenders to secure the adoption and implementation of equality laws.

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Acknowledgements Acronyms and Abbreviations Executive Summary

1. BACKGROUND AND CONTEXT 1 1.1 Purpose and Structure of the Study 2

1.2 Conceptual Framework 3

1.3 Project Team 3

1.4 Research Methodology 4

1.5 Country Context 7

1.6 Recent Historical and Political Context 8

1.7 Branches of Government and Statutory Bodies 10 1.8 Discrimination in Serbia: Why is this Study Needed? 14 2. THE LEGAL AND POLICY FRAMEWORK RELATED TO EQUALITY

2.1 International and Regional Law 26 2.1.2 Other Treaties Related to Equality 29 2.1.1 Major United Nations Treaties Related to Equality 26

2.1.3 Regional Human Rights Treaties 30

2.1.4 European Union Legislation Related to Equality 31

2.1.5 Customary International Law 32

2.1.6 Status of International Obligations in National Law 33

2.2 National Law 34

2.2.1 The Constitution 34

2.2.2 Specific Anti-Discrimination Laws 39

2.2.2.1 Interaction Between the Specific Anti-Discrimination Laws 40

2.2.2.2 The Law on the Prohibition of Discrimination 46 2.2.2.3 The Law on the Prevention of Discrimination of

Persons with Disabilities 60 2.2.2.4 The Law on Gender Equality 66

2.2.3 Non-Discrimination Provisions in Other Legal Fields 71 2.3 National Policies 78 3. ENFORCEMENT AND IMPLEMENTATION OF SERBIA’S EQUALITY LAWS

3.1 Access to Justice 81

3.1.1 Legal Framework 82

3.1.2 Practical Barriers 87

3.2 Remedies and Sanctions 93

3.2.1 Civil Proceedings 94

3.2.2 Complaints Procedure to the Commissioner 97

3.2.3 Misdemeanour Proceedings 100

3.3 Enforcement 100

3.3.1 The Judiciary 100

3.3.2 The Commissioner for the Protection of Equality 105 3.4 Compliance with Equality Laws by State and Private Actors 115 4. RECOMMENDATIONS 121

Annexes

Bibliography 127 141 Acknowledgements

Praxis This study is publishedSandzak by the Equal Committee Rights Trust, in partnership with Associa- projecttion of Citizens between Praxis the partners ( )that and seeks Sandzak to increase Committee protection for Protection from all of forms Human of discriminationRights and Freedoms in Serbia ( through legal and policy). The reform. study forms The study part of is a published two-year in both an English-language and a Serbian-language version. oped by the Equal Rights Trust. The lead researchers of the study were Professor The conceptual framework, structure and research methodology were devel-

Nevena Petrušić, the inaugural Commissioner for the Protection of Equality in Serbia (2010–2015) and professor at the Faculty of Law at the UniversityResearch of Nis, Consultantsand Ms Kosana Beker, Assistant to the Commissioner for the Protection of Equal- ity in Serbia (2010–2016) and equality law academic and consultant ( ). Lucy Maxwell, Legal and Programmes Officer at the Equal Rights Trust, conducted research on international and regional human rights law and editorialbest practice. oversight. Professor Petrušić, Ms Beker and Lucy then co-drafted the study. Joanna Whiteman, the Trust’s Co-Director, provided guidance and substantive

The Trust and its partners wereĆirić greatly assisted in the development of the study, by a six-member expert Working GroupĐurić comprising the following leaders from Serbia’s civil society: Dragana Milovanović and Lazar Stefanovic (Mental Disability Rights Initiative); Milan (Gayten); Tamara Lukšić Orlandić (independent expert); Vanja Macanović (Autonomous Women’s Centre); Osman Balić (S-KRUG League of Roma); and Vladimir Petronijević (Grupa 484). The Working Group provided feedback on the research methodology, facilitated three community consultation meetings, provided written comments on the study’s contents and attended a two-day study validation meeting in June 2018. The Trust content.would like to thank each individual member of the Working Group for their contributions to the research for this study and their advice on the study’s form and

The findings and recommendations of this study are based on extensive field rangeresearch of stakeholders conducted fromincluding mid-2017 government to early and 2018. private As sector outlined representatives below, the Research Consultants conducted over fifty one-to-one interviews with a wide lawyers and civil society organisations in different regions of Serbia. The team and attended focus groups with more than 150 survivors of discrimination, vii would like to thank all of those persons who gave their time and reflections to shape the findings of the study. conducted interviews and focus groups with survivors of discrimination in Five Serbian civil society organisations, whose work was co-ordinated by Praxis, different regions of Serbia. The organisations were: Da se zna! (It should be known!); Roma Researchers; The Network of the Committees for Human Rights in Serbia (CHRIS); the Association of Students with Handicaps; and the Centre for Prevention of Crime and Post-Penal Help (NEOSTART). Union. The contents of the study are the sole responsibility of the Equal Rights This study has been produced with the financial assistance of the European European Union. The Trust wishes to extend its sincere thanks to the staff at the EuropeanTrust and Unioncan in whono circumstances have supported be ourregarded work. as reflecting the position of the Acronyms and Abbreviations

Anti-Discrimination Action Plan for the Implementation of the

Action Plan Anti-Discrimination Strategy Anti-Discrimination Strategy Strategy of Prevention and Protection Against 2014–2018 CAT InhumanDiscrimination or Degrading 2013–2018 Treatment or Punish mentConvention against Torture and Other Cruel, CAT Committee Committee against Torture - CEDAW Convention on the Elimination of all Forms of Discrimination against Women CEDAW Committee Committee on the Elimination of all Forms of Discrimination against Women CERD Committee on the Elimination of Racial Dis crimination CESCR - Rights CHRIS Committee on Economic, Social and Cultural in Serbia Commissioner CommissionerNetwork of the forCommittees the Protection for Human of Equality Rights CRC Convention on the Rights of the Child CRC Committee Committee on the Rights of the Child Criminal Code Criminal Code of the Republic of Serbia CRMW Convention on the Protection of the Rights

Families CRPD Conventionof All Migrant on Workers the Rights and of Members Persons with of their Disa bilities CRPD Committee Committee on the Rights of Persons with Disa - bilities CSO Civil society organisation - CSRs Case study reports Declaration Declaration of Principles on Equality ECRI European Commission Against Racism and Intolerance ECSR European Committee of Social Rights ECHR European Convention for the Protection of

ECtHR Human Rights and Fundamental Freedoms EU European Union European Court of Human Rights Gender Equality Action Plan Action Plan for

Gender Equality Strategy the Implementation of the Gen- der Equality Strategy 2016–2018 HDI National Strategy for Gender Equality 2016–2020 HIV/AIDS Human Development Index HRC Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome IACHR Human Rights Committee IACtHR Inter-American Commission on Human Rights ICCPR International Covenant on Civil and Political RightsInter-American Court of Human Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR Cultural Rights ILO International LabourCovenant Organization on Economic, Social and Kosovo and Metohija LGBT Autonomous Province of Kosovo and Metohija LGBTI Lesbian, gay, bisexual and transgender LGBT+ Lesbian, gay, bisexual, transgender and intersex asLesbian, those whogay, bisexualare intersex and ortransgender asexual and per- LGE sons of all other sexualities and genders, such LPD Law on the Prevention of Discrimination Law on Gender Equality LPDPD Law on the Prevention of Discrimination against Persons with Disabilities NATO NEOSTART The Centre for Prevention of Crime and North Atlantic Treaty Organization NGO Post-Penal Help OSCE Non-governmentalEurope organisation Praxis AssociationOrganisation of for Citizens Security Praxis and Co-operation in Sandzak Committee Rights and Freedoms Serbia RepublicSandzak Committeeof Serbia for Protection of Human SFRY Socialist Federal Republic of Yugoslavia UDHR

Universal Declaration of Human Rights UN UNESCO turalUnited Organization Nations UNESCO Convention United Nations Educational, Scientific and Cul- tural Organization Convention against Discrimi nationUnited inNations Education Educational, Scientific and Cul- UNICEF - UPR Universal Periodic Review United Nations Children’s Fund Vojvodina Autonomous Province of Vojvodina EXECUTIVE SUMMARY

ing the key factors that are preventing the framework on equality from providing effectiveThis study protection explores thein practice efficacy andof Serbia’s proposing legal recommendations framework on equality, for increasing identify-

ak Commit its effectiveness. The study forms part of a two-year project between the Equal seeksRights to Trust, increase the Associationprotection from of Citizens all formsPraxis of discrimination (Praxis) and Sandin Serbiaž through- legaltee for and Protection policy reform. of Human Rights and Freedoms (Sandžak Committee), which

On 26 March 2009, the Republic of Serbia adopted the Law on the Prohibition internationalon Discrimination and European (LPD). This standards. represented Adding a significant to other important move towards equality bringing laws Serbia’s framework on equality and non-discrimination into compliance with

(Law on the Prevention of Discrimination against Persons with Disabilities 2006 and Law on Gender Equality 2009), and underpinned by a Constitutional protection for equality, the LPD establishes an almost comprehensive regime for the protection of the rights to equality and non-discrimination in Serbia.

Despite this, evident inequality and discrimination persists in all areas of Ser- bian life. Just short of the LPD’s tenth anniversary, this study finds evidence of serious flaws in the administration and implementation of Serbia’s equality and non-discrimination framework. These flaws are limiting the effective realisation of the rights to equality and non-discrimination in practice. The study identifies and explores a lack of public awareness, high court costs, fragmented legal aid inprovision, the current physical legislative and structural framework. barriers All of these preventing issues accesscan be toresolved courts, and proce the- studydural delays,makes aand series mistrust of recommendations in the judiciary, alongsideto the state some to this identified end. Amongst weaknesses these recommendations, it is particularly urgent that equality-sensitive legal aid legislation is passed, and that training on the equality framework and monitoring of its implementation is rolled out among public and private service providers, and those responsible for enforcing the LPD, including the judiciary. Part 1: Background and Context The purpose of this study is to identify the key factors that are preventing Ser to propose recommendations for increasing its effectiveness. - bia’s framework on equality from providing effective protection in practice, and I II EQUAL RIGHTS TRUST into thedraft. feedbackThe received fromWorking the Group was subsequently incorporated recommendations. collaborativelyits formulatedand findings, its and draft the two-day validation conference in Serbia in June 2018, at which they interrogated civil society representativesrange ofa senior of different marginalised groups attended a comprising Group Working A process. validation a to subject was study draft the draft, first a of preparation the and research the of completion equality.and Followingrightsthe human of field the in experts legal ativesand Human representatives,authority public privateforRights, represent sectorMinority and Office the of director the Equality, of Protection the for missioner one interviews 57 and lawyers; and representatives CSO discrimination, of survivors discussions, five call; public competitive a via selected CSOs fiveby conducted Serbia, of regions different in justice access to attempts and discrimination of research including aspects, keyfour of consisted study the forresearch The Research Methodology and JoannaWhiteman oftheTrust. Maxwell Lucy with closelyworked They consultant. and academic law equality and (2010-2016) Serbia in Equality of Protection the for Commissioner the to sor at the Faculty of Law at the University of Niš, and Ms Kosana Beker, Assistant profesand (2010-2015) Serbia in Equality of Protection the for Commissioner The lead researchers of the study were Professor Nevena Petrušić, the inaugural fragmentation inthefieldofequalitylaw andpolicies. gralrole the enjoymentin ofequality rightshuman of all seeks and to overcome rightsand human fromover all theworld.This perspective emphasises the inte equality on activists and experts more, hundreds by subsequently and 128, by tion), a statement of international best practice adopted in 2008, signed initially (Declara Equality on Principles of Declaration the in expressedequality, as on The conceptual framework for the study is the unified human rights perspective of Serbia’s framework onequality. effectivenessthe increasetomeasures for recommendations study’s the tains remedies, and enforcement by independent and competent bodies. effectivejustice, to access to related measures as such practice, in protection practical measures thatare necessaryto ensure thatitsequalitylaws provide practice. with consistent its international andregional legal obligations aswell asinternational best is equality on framework legal Serbia’s which to extent the structure. political and history its Serbia, about information basic provides and sum Serbia, in discrimination It of patterns methodology.ongoing the research marises and framework conceptual its study, the of The study comprisesfour parts. Part 3 of existing published resources; including three community consultation meetings, convenedmeetings, with consultation community three including analyses theextent to which Serbia hasadopted thelegal and with a wide rangea with of stakeholders the currentincluding Com Part 1 setsoutthepurposeandstructure field research to documentinstances Part 2 focus groupfocus desk-based Part 4 analyses one-to- con ------Scope and Limitations of this Study in practice equality

The primary objective of the study is to evaluate the effectiveness of the cur rent legal and policy framework on equality in Serbia. It has three key limita - - tions. Firstly, it does not provide a comprehensive analysis of the patterns of discrimination in Serbia. Secondly, while it examines judicial interpretation of theSerbia’s Research equality Consultants laws, it doesinterviewed so by analysing a limited keysample examples of individuals rather than from con key- executive summary ducting a comprehensive analysis of existing case law on discrimination. Thirdly, stakeholder groups and organisations (57). These individuals comprised a rep- agreeresentative to some cross-section interviews beingof key given stakeholders. anonymously. However, in order to gain input from representatives of private and government entities, it was necessary to Country Context

The Republic of Serbia (Serbia) is a landlocked country situated in south-eastern Europe, in the centre of the Balkan Peninsula,Šumadija and its capital city is Belgrade. The country is divided into two autonomous territories (Vojvodina, and Kosovo and Metohija); the Belgrade region; the and Western Serbia region; and the Southern and Eastern Serbia region. In 2014, Serbia opened formal negotiations for accession to the EU, which remain underway.

The population of Serbia at the time of the most recent census, taken in 2011, was approximately 7.2 million. While the majority of the population identify as Serbian and identify Serbian as their mother tongue, there are 21 other ethnic monlygroups spoken with more languages than 2,000 after Serbian.members, The the main largest religion of which of Serbia are Hungarians,is Orthodox Roma, Bosniaks and Albanians. Hungarian, Bosnian and Roma are the most com-

Christianity (84.6%), followed by Roman Catholicism (5%) and Islam (3%).

While Serbia’s economy grew at a solid rate over the period 2001-2008, it was hit hard by the global financial crisis in 2007, and it did not return to positive growth until 2013. In 2016, Serbia’s Gross Domestic Product (GDP) was US $38.80 billion. The United Nations Development Programme ranked Serbia in 66th place in its Human Development Index (HDI) for 2015, with an HDI of 0.776. Serbia’s Gini Income coefficient, which measures inequality in the distri- Recentbution ofHistorical wealth, of and 29.6, Political placed Contextit 77th out of 187 countries.

From the end of the Second World War until the early 1990s, Serbia formed part of the Socialist Federal Republic of Yugoslavia (SFRY). In 1991, Croatia, Slovenia, and Macedonia declared independence from the SFRY, followed by Bosnia in 1992, leading to the establishment of the Federal Republic of Yugo- slavia (FRY), later reconstituted as the State Union of Serbia and Montene- III gro. Each declaration of independence resulted in violent conflict in which thousands of civilians were killed, wounded, tortured, abused or displaced. IV EQUAL RIGHTS TRUST qaiy o ses h etn t wih t opis ih ebas international Serbia’s with human rights obligations andinternational bestpractice onequality. complies it which to extent the assess to equality to related framework policy and legal Serbia’s analyses study the of part This Part 2: TheLegal and Policy Framework Related to Equality work ofprotection, more mustbedoneto address ongoinginequalityinSerbia. frame legal a of existence the despite that, finds Part This healthcare. and tion educa employment, to rights their of realisation full the prevent experience that barriers and life, of gender areas diverse and in exclusion sexual face women disabilities, and with minorities, persons Roma), the as (such minorities implementation national including groups,Many 3). Part in weak (discussed lawsenforcement of and by perpetuated and attitudes, social discriminatory of sive, the report finds evidence of significant inequalities, arising in consequence terns of discrimination within thestate.not intended Whilst to becomprehen of discrimination persist. analysed in detail in Part 2), significant, serious and seemingly systemic patterns (as Serbia in discrimination fromprotection legal the improvementsin Despite Patterns ofDiscrimination tion ofthePresident. Assembly,recommendaNational the on Serbia, Parliamentunicameralof the 250-member the by appointed directly is Minister,who Prime the and isters min vice-presidents, more or one comprising Government, the by exercised is power Executive terms. five-year two of maximum a for elections general and thejudiciary. ThePresident istheheadofState andiselected directly in powers amongst three branches of government: the executive; the legislature; The Constitution establishesSerbia asaparliamentary democracy anddivides Branches ofGovernment andStatutory Bodies ognised by theGovernment ofSerbia. this day. In 2008, Kosovo unilaterally declared independence, but this is not rec to NATO-ledKosovocontinues a whichin force and security administration UN forces withdrew from Kosovo, and the UN Security Council authorised an interim police and military Serbian 1999, June In 1999. of spring the in Serbia bombing war,which culminated in forcescivil from the North Atlantic Treaty Organizationa (NATO) into escalated Kosovo in Albanians ethnic from for autonomy campaign greater a 1998, In contention. significant of source a remains Serbia, of The status of Kosovo, currently the Autonomous Province of Kosovo and Metohija independence, andthecurrent Constitution ofSerbia was adopted. declared Montenegro 2006, June In 1995. in Accords Peace Dayton the of ing international humanitarian law in 1993, with conflict continuing until the sign An international tribunalwas establishedto investigate seriousviolationsof Part1.8 ofthisStudy providesoverview an ofpat ------Part 2.1 in practice equality

of the study assesses Serbia’s participation in international instruments. Serbia has a very good record of participation in the major UN human rights treaties, having ratified or acceded to eight of the nine core UN human rights treaties, and permitting individual complaints to be made in respect of iliessix of represents them. However, a notable Serbia’s gap. failureSerbia alsoto ratify has athe very International good record Convention in relation on to the Protection of the Rights of All Migrant Workers and Members of Their Fam- executive summary the ratification of other international and regional treaties which are relevant to the rights to equality and non-discrimination. It has ratified or acceded to all but one of the major European treaties and importantly, has ratified the Euro- pean Convention on Human Rights (ECHR) and Protocol No. 12 to the ECHR which provides a free-standing right to non-discrimination. ticipated in formal accession negotiations and was granted candidate status in Although Serbia is not currently a member of the European Union, it has par- Agreement with the EU and committed to gradually harmonising domestic leg 2012. In September 2013, the government signed a Stabilization and Accession - islation with the acquis communautaire (acquis) – the body of common rights althoughand obligations further that harmonisation is binding on and all better EU member enforcement states. and As ofimplementation April 2018, Ser of- existingbia’s anti-discrimination laws is required. law is broadly consistent with European standards,

International obligations consistent with the Constitution are directly applica

- ble in Serbian law and, in a number of decisions, the Serbian courts have applied provisions of the ECHR and Protocol 12 of the ECHR in order to protect the rights to equality and non-discrimination.

Serbia’s Constitution prohibits discrimination and declares the equality of all persons under the law (Article 21). The open list of protected characteristics provided is broadly consistent with international law and best practice, although several well-recognised grounds of discrimination are omitted. Furthermore, the Constitution fails to prohibit harassment, denial of reasonable accommodation, or associative, perceptive or multiple discrimination. Positive action measures are permitted under Articles 21 and 76 but are not mandated. Although adoptionadditional of “special paternalistic protection” measures provisions that discriminate may be used against in practice concerned to permit groups. positive action, the wording of these provisions is problematic and could justify the

Additional problems stem from the definition of hate speech under Article 49 of the Constitution, which fails to meet international standards, and the diminutive Partlist of 2.2.2 grounds protected under Article 50.

assesses the major pieces of equality and anti-discrimination legislation in Serbia. In 2009, Serbia adopted a comprehensive equality law, the Law on the Prohibition on Discrimination (LPD). It has also adopted two detailed laws pertaining to the rights to equality and non-discrimination of specific groups: V the Law on the Prevention of Discrimination against Persons with Disabilities, and the Law on Equality Between the Sexes (the Law on Gender Equality), which VI EQUAL RIGHTS TRUST and Freedoms of National Minorities contains specific provisions relating to the and criminal law. In respect of the former, the Law on the laws, Protectioncivil of of fields the the in Rights legislation anti-discrimination of pieces other in provisions non-discrimination specific these to addition In LGE only extends to theworkplace. the under harassment Furthermore, accommodations. reasonable make to failure or discrimination, multiple and perceptive, associative, to reference omits LGE former.the practice,the best in to Contrarydemanding more far are measures action positive LPD, the and LGE the between overlap significant is there Although obligations. reporting and fines by enforced are which of some equality, gender promote to actors non-state many on significantly, most and, Gender Equality (LGE) is examined in denial ofreasonableformaccommodation asa ofdiscrimination. The Lawon define adequately to failure the by undermined significantly effectivenessis its crimination. The LPDPD does specify some accessibility requirements; however, Unlike the LPD, there is no express protection against multiple or perceptive dis may bebrought inagreater proceedings number of cases involving persons with disabilities. misdemeanour LPDPD, the under although LPD, the as of coverage degree similar a has LPDPD The (LPDPD). Disabilities with Persons of tion Part2.2.2.2 mandated undertheLPD. not but permitted are measures action positive Constitution, the in As tice. are overly broad, ill-defined and may diminish the nature of the right exemptionsin prac These opinion. political of ground the on and officials religious introduces anexemption to theordinary rules regarding discriminationfor contrary to bestpractice andtheprincipleofequalprotection. TheLPDalso proceedings misdemeanour others,not but discrimination groundsof certain broughtrespect of being in in result may which discrimination”, of cases speech andassociationprovisions. Part IIIoftheLPD introduces “special hateof respect in arise difficulties further requirementsinternationaland of short falls definition its but covered is Victimisation discrimination. of form a as accommodation reasonable of however,denial the not, define does LPD containing someoverlapping and potentially contradictory provisions. The discrimination, and is broadly compliant with international standards, associative and despiteperceptive both recognises LPD the Constitution, the Unlike prohibits discrimination inawiderange ofareas ofactivity regulated by law. non-discrimination in Serbia. It applies to both state and non-state actors and governingthe primarylegislation is LPD The rights the to equalityand law isconsidered indetail. each before remedies, and mechanisms enforcement non-discrimination, and equality to rights the of law,protection each including of features main the out the area ofenforcement. Acomparison is provided in law,Serbian in out in set challenge not added creatingan and leaving confusion is currently underreview.The interaction between is thesepiecesoflegislation nation, including in relation to health care, employment and labour relations, labour and employment care, health to relation in including nation, rightsminorities. Various ofnational lawsprohibitions contain ondiscrimi of the study evaluates the Law onthePrevention of Discrimina Part2.2.2.3 . It imposes duties onthestate. It Part2.2.2.1 Part2.2.3 , which sets which , examines - - - - equality in practice equality instrument regulating criminal justice in Serbia and contains several provisions all levels of education, and social security. The Criminal Code is the main legal freedomcriminalising of expression hate-motivated and are violence contrary and to incitement best practice. to hatred. Several Whilst provisions there are of themany Criminal positive Code aspects, criminalise some of acts these amounting provisions to discrimination may infringe upon that extendthe right well to beyond those severe manifestations of discrimination to which criminal sanc tions are appropriate.

- executive summary Part 2.3

Finally, provides a brief review of Serbia’s National Strategies, including the Strategy of Prevention and Protection Against Discrimination 2013–2018, and the National Strategy for Gender Equality 2016-2020. Part Three: Enforcement and Implementation of Serbia’s Equality Laws

Part 3 equality laws. Drawing upon interviews and focus groups conducted with of the study examines the enforcement and implementation of Serbia’s survivors of discrimination, civil society organisations, state bodies, private placesector many organisations, of the key equality legal mechanisms experts and necessary the current to facilitate Commissioner access forto justhe Protection of Equality, this part finds that whilst, on the whole, Serbia has in - menttice, effective measures. remedies and enforcement, the right to equality is undermined in practice both by specific gaps in the mechanisms and by inadequate enforce- Part 3.1 of the study examines the legal framework relating to access to jus

- tice. It finds that despite positive legal provisions governing standing, burden of proof and jurisdiction, which are broadly consistent with international best practice, access to justice for victims of discrimination in Serbia is seriously tiveimpeded. outreach In the work first conducted instance, bythe the study Commissioner finds evidence for ofthe a Protectionsignificant ofdeficit Equal in public awareness and understanding of anti-discrimination laws, despite posi- - provisionity (the Commissioner). is incomplete Theand issuefragmented. is compounded Physical bybarriers the high may cost prevent of litigation. access Although legal aid may be available for a small number of individuals, legal aid to courthouses for persons with disabilities, whilst a decision in 2013 to move discrimination cases to the specialised Higher Courts has increased travel times and costs. A lack of lawyers trained in non-discrimination law, particularly in Remediesrural areas, and further sanctions impedes for acts access. of discrimination are discussed in Part 3.2. The civil law provides for a wide range of remedies and sanctions for violations of

The courts may grant an interim or mandatory injunction to prevent or redress discriminatorythe right to non-discrimination, acts and may further including require compensation that its decision and declaratorybe published relief. in a VII national newspaper. There is, however, no provision for courts to order struc- VIII EQUAL RIGHTS TRUST national law related to equality. of international bestpractice which consolidates the essentialelementsof inter related to equality, and on the Declaration of Principles on Equality, a document obligations its meet tounder international law. Allrecommendations are based on international law state the enable to mechanisms, implementation and enforcementimproving of aim the with government, to recommendations able respect, in Part 4 of the study, the Trust makes a number of specific and measur by practice the absenceof practicalin measures to ensure its effective enforcement.undermined Inthis significantly is Serbia in equality to right the tion, non-discrimina and equality on framework legal strong a possessing Despite Part Four: Recommendations of content Serbia’s equalitylaws. the surrounding awareness of lack a and Serbia, in problem social ties, the study reveals both a lack of recognition of discrimination as a significant authori public enterprisesand largescale and medium small, cross-sectionof a representativesfrom 47 with interviews conducted Having actors. private and Finally, levels ofawareness remain persistently low. order for equality laws to be adequately enforced, as our in research indicates that obligations their of duty-bearers amongst awareness increase significantly to reform.However,statelaw the in forengagement need and a igation is there lit strategic mechanism, complaint Commissioner’s the including strategies of combination a through practice, in well generally working be to appears laws equality Serbia’s with compliance promoting in Commissioner the of role the contrast, By training. law equality further for need a indicating cases, some in ered erroneous ofdiscrimination applications lawby members of thejudiciary as akey reason fordiscrimination litigation.initiating not The Trust discov also focus and bodies, treaty groups facilitated by UN researchers for the Trust highlight mistrust in thejudiciary by raised been have concerns law of Rule years. Court, continue to hamper access to justice, despite attempts at reform in recent in Delays particularlycases, beforeof backlog Constitutional byproceedingsa the caused reforms. institutional significant for need the indicating redress, of form independent and efficient an as system court the in confidence public of tive enforcement of Serbia’s equality laws by the judiciary is hampered by a lack Part3.3 study findsthatinpractice itrarely doesso. tain provisions. Whilst the CPE has the power to file misdemeanour charges, this misdemeanour proceedings to becommenced with respect to violationsof cer for provide each laws equality three Serbia’s compelled. be cannot compliance and limited, are powers Commissioner’s the However, non-discrimination. to may investigate andmake recommendations violationsoftheright on alleged Commissioner the LPD, the of procedure complaints the Under remedies. tural Part3.4 of the study examines enforcement mechanisms. It finds that the effec of the study examineslawswith equality compliance by state ------The report makes recommendations in nine areas: in practice equality

1. Increase public awareness of Serbia’s equality laws and methods of enforcement; 2. Increase access to justice by removing financial and physical barriers; 3. Ensure the independent, efficient and effective enforcement of Serbia’s

equality laws by the judiciary; executive summary 4. Strengthen the enforcement of equality laws by the Office of the Commis- sioner for the Protection of Equality; 5. Increase awareness of, and compliance with, Serbia’s equality laws by duty-bearers in the state and private sector; 6. Review Serbia’s legal framework to ensure consistency with international law and best practice on the rights to equality and non-discrimination; 9.7. ProhibitionStrengthen internationalof Regressive commitmentsInterpretation. related to equality; 8. Data collection on equality; and

1. BACKGROUND AND CONTEXT

adopted numerous laws regulating issues of discrimination and inequality and In the past 10 years, the Parliament of the Republic of Serbia (Serbia) has protecting the rights of vulnerable groups including women, ethnic and religious minorities, lesbian, gay, bisexual, transgender and persons of all other sexualities Theand genders,most comprehensive such as those of who these are is intersexthe Law oron asexual the Prohibition (LGBT+), of persons Discrimina with disabilities, children,The migrantsLPD also establishedand internally the displaced role of the persons Commissioner and returnees. for the - complaintstion 2009 (LPD). and initiate legal proceedings pertaining to violations of the Law. Protection of Equality (Commissioner) who has the power to receive and review

The LPD, albeit imperfect, is widely considered among equality experts to provide strong legal protection for the rights to equality and non-discrimination. It has also been supplemented by numerous national strategies, which the Govern- ment has adopted since 2009, with the purpose of combatting discrimination. crimination and disadvantage. The persistence of discrimination provides the Despite these advancements, many groups in Serbia still face significant dis- impetus for the present study. It raises the question, “Why is Serbia’s legal and policy framework on equality failing to provide protection in practice?” in recent years. Its equality laws have been explored and considered as part of Serbia’s legal and implementation framework has not been1 bodies without of the scrutiny Council 2 the European Commission and its associated bodies. While a vari analysis of the country’s obligations by3 UN treaty bodies, 4 of Europe, - ety of recommendations have been made in previous reviews, there has been no holistic exploration of the implementation of Serbia’s equality laws based on the

1 The concluding observations issued by the UN treaty bodies in the past six years are as follows: Committee on the Elimination of Discrimination Against Women (CEDAW Committee) (2013); Committee on Economic, Social and Cultural Rights (CESCR) (2014); Committee Against Torture (CAT Committee) (2015); Committee on the Rights of Persons with Disabilities (CRPD Committee) (2016); Committee on the Rights of the Child (CRC Committee) (2017); Human Rights Committee (HRC) (2017); Committee on the Elimination of Racial Discrimination (CERD) (2018). ECRI Report on 2 Serbia:The Council Fifth monitoringof Europe’s cycleEuropean Commission Against Racism and Intolerance (ECRI) is a human rights. body composed of independent experts. See their report on Serbia’s equality laws: ECRI, , 2017, availableSerbia at: 2018https://rm.coe.int/third-report-on-serbia/16808b5bf4 Report: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the 3 RegionsSee, for example: European Commission, . , 2018, available at: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20180417- serbia-report.pdf Country report, Non-discrimination: Serbia 2017 https://www. 1 4 See, for example: European Commission, European Network of Legal Experts in Gender Equality. and Non-discrimination, , 2017, available at: equalitylaw.eu/downloads/4408-serbia-country-report-non-discrimination-2017-pdf-1-75-mb 2 EQUAL RIGHTS TRUST The study comprisesfour parts: and promote theequalenjoyment ofhumanrights andfundamentalfreedoms. discrimination combat to working Serbia in stakeholders all and activists, and ence point and evidence base to be used by human rights organisations, lawyers We hope that the findings and recommendations of the study will provide a refer protection for therights itwas intended to protect. it is its crucial enactment, to critically evaluate whether it is providing sufficient after years however,nine development; significant very a was LPD the of tion introduc The non-discrimination. and equality to rights the of protectionbia’s Producingstudy a in thedevelopmentstage important is an ofthiskind of Ser reform are containedinPart Four. forrecommendations The Three).(Part implementation enforcementand their ings are based on analysis of the content of Serbia’s equality laws (Part Two) find and study’s The effectiveness. its increasing for recommendations propose to bia’sframework from equality on providing effective protection practice,in and The purpose of the study is to identify the key factors that are preventing Ser 1.1 experts, theCommissioner, publicsector andprivate legal sector bodies. (CSOs), organisations society civil rights-bearers, with consultation sive mentation of Serbia’s equality laws and measures to increase the crimination in practice. Itdistinguishes between reforms needed to the regarding themeasures thatare mostneeded to enhanceprotection fromSerbia dis in advocates equality for road-map clear a provide to seeks study This civil societyhasfound itchallengingto identifyaclearpathforward. experiences and insights of a wide range of stakeholders. Against this backdrop, Purpose andStructure oftheStudy Part Three as well asinternational bestpractice. is consistentequality its international with and regional legal obligations PartTwo Serbia, itshistory andpoliticalstructure. about information basic provides and Serbia, in discrimination of terns framework andresearch method PartOne crease theeffectiveness of Serbia’s framework onequality. Part Four and independent competent bodies. by enforcement and remedies, effective justice, to lawsprovide protection practice,in measuresas such related to access and practical measures thatare necessary to ensure thatitsequality of the laws; and prioritises proposals for next steps based on extenproposalson laws;forprioritises nextstepsbased the and of sets out the purpose and structure of the study,the of structureconceptual and its purpose the out sets otis h suys eomnain fr esrs o in to measures for recommendations study’s the contains nlss h etn t wih ebas ea faeok on framework legal Serbia’s which to extent the analyses analyses theextent to which Serbia hasadopted thelegal ology. Itsummarises the ongoingpat enforcement and imple content ------

1.2 Conceptual Framework in practice equality

The conceptual framework for the study is the unified human rights perspective on5 equality, as expressed in the Declaration of Principles on Equality (Declaration). This perspectiveIt emphasises has a the number integral of key role characteristics, of equality in theincluding enjoyment the following: of all human

background and context rights; It seeks to overcome fragmentation in the field of equality law and policies, by looking at the cumulative impact of discrimination on different Itgrounds, notes that and full which equality also bringsnot only together requires identity/status-related freedom from direct and inequal indi- ities, and socio-economic inequalities; and accommodation of difference. - rect discrimination, but also demands positive action and the reasonable

1.3 Project Team This study forms part of a Association of Citizens ak Committee for Protection two-year project between the Equal Rights Trust, the protection from all formsPraxis of discrimination (Praxis) and Sandin Serbiaž through legal and policy reform.of Human Rights and Freedoms (Sandžak Committee) which seeks to increase

The lead researchers of the study were Professor Nevena Petrušić, the inaugural Commissioner for the Protection of Equality in Serbia (2010-2015) and professor at the Faculty of Law at the University of Niš, and Ms Kosana Beker, Assistant to the Commissioner for the Protection of Equality in Serbia (2010- research2016) and on equality international law academic and regional and consultanthuman rights (Research law and Consultants). best practice. LucyPro Maxwell, Legal and Programmes Officer at the Equal Rights Trust, conducted - fessor Petrušić, Ms Beker and Lucy then co-drafted the study. Joanna Whiteman, the Trust’s Co-Director, provided guidance and substantive editorial oversight.

The conceptual development, research and content of the study were overseen by a six-member expert Working Group comprising the following leaders in Ser- bian civil society: Dragana Ćirić Milovanović and Lazar Stefanović (Mental Dis- ability Rights Initiative); Milan Đurić (Gayten); Tamara Lukšić Orlandić (independent expert); Vanja Macanović (Autonomous Women’s Centre); Osman Balić (S-KRUG League of Roma); and Vladimir Petronijević (Grupa 484). The Working Group provided feedback on the research methodology, facilitated three community consultation meetings, provided written comments on the contents of a draft of the study and attended a two-day study validation meeting in June 2018.

Declaration of Principles on Equality

5 , Equal Rights Trust, London, 2008, available at: http://www.equalrightstrust.org/content/declaration-principles-equality. 3 4 EQUAL RIGHTS TRUST The selected organisations representdiverse a geographicalcoverage in Serbia (Part Three). practice in frameworklegal Serbia’s effectiveness of the and One) (Part ination Their justice. research wasused to illuminate theongoingpatterns ofdiscrim access to attempts and discrimination of experience (CSRs) individuals’ Reportsdocumenting Study Case individual 50 almost produced organisations The regions of Serbia across a range of grounds of discrimination and areas of life conduct to call public competitive a via selected were CSOs five 2017, July Secondly,in included analysis of: undertooksultants The research for the study consisted of four key aspects. First, the Research Con include: to defined was equality” on framework policy and “legal Serbia’s outset, the At Research Consultantsandthe frameworkfor theresearchthe two with methodologyinconsultation expert the set studyand the of structure and scope Trustthe Rights definedEqual The 1.4 and cover a wide range of grounds of discrimination and areas of life, as follows: Research Methodology Public opinionpollsconducted by research bodiesandCSOs. existing analyses ofcaselaw; and and below) detail further in (explained courts domestic from Caselaw (2013); nation of persons with disabilities (2013) and discrimination of children reportsspecial 2017) and womendiscrimination of on (2015), discrimi Publications of the Commissioner including annual reports tabled (2010- tors; commenta legal and academics by laws equality Serbia’s on Literature equality; on framework policy and legal law,the regional for and international of instruments as well as documents, policy government and Legislation ongoing patterns ofdiscrimination; and situation rights human current the for others, among Mechanisms, Special UN and Bodies Treaty UN of reports and (NGOs), organisations non-governmental rights human international and Serbian by Reports text; Academic andgovernment sources for thehistoricalcon andpolitical National policiesandregulation onequalityandnon-discrimination. Specific anti-discriminationlaws; and Constitutional provisions onequalityandnon-discrimination; International obligations ofSerbia inthearea ofnon-discrimination; il research field desk-based research to documentinstancesof discrimination in different Working Group. of existing publishedresources. This - - - - - . in practice equality

Da se zna! (It should be known!): discrimination on the ground of sexual orientation in five locations across north, south and central Serbia; Romi istraživači (Roma Researchers): discrimination on the ground of groundethnicity of in ethnicity employment in the in provision northern ofSerbia health (excluding care and Belgrade);social welfare in Mreža odbora za ljudska prava u Srbiji (CHRIS): discrimination on the

15 cities across the country including the Sandzak region. background and context Udruženje studenata sa hendikepom (Association of Students with Hand- icaps): discrimination on the ground of disability in tertiary education in state and private universities in Belgrade; Centar za prevenciju kriminala i postpenalnu pomoć - NEOSTART (Cen- tre for Prevention of Crime and Post-Penal Help): discrimination on the ground of criminalfocus record group in discussions social care wereand health convened care within Belgrade. survivors of alsThirdly, spoke a totalof their of five experiences of discrimination and attempts to access justice. discrimination, CSO representatives and lawyers. In each focus group, individu-

With the participants’ consent, these experiences are reflected in the exploration of some ongoing patterns of discrimination in Serbia (Part One) andcom the- munityeffectiveness consultation of Serbia’s meetings legal framework organised in practiceby Praxis (Part and Three). Sandzak The Committee Research inConsultants attended all five focus groups. Three were held as part of the

Niš (1 November 2017), Belgrade (10 November 2017) and Novi Pazar (15 November 2017). Two further focus groups were convened by the Research Consultants in Pančevo (8 December 2017) and Vranjeone-to-one (21 December interviews 2017). with a

Fourthly, the Research Consultants conducted 57 wide range of stakeholders, including: The current Commissioner for the Protection of Equality; The director of the Office for Human and Minority Rights; Eight Serbian legal experts in the field of human rights equality and non-discrimination; Thirty-four representatives of public authorities, from the national, provincial and local level and from a range of sectors, including education, social protection, health care, employment, judiciary, state administration and local self-government; and Thirteen representatives from private sector organisations, including international and domestic large, medium and small businesses (the sizes6 A full listas definedof interviews by the andAgency focus for groupsBusiness conducted Registers isof outlinedthe Republic at Annex of Serbia). 1. A summary of the topics covered in the interviews are outlined in Annex 2. With the exception of the Commissioner and the director of the Office for Human and

6 The Agency for Business Registers of the Republic of Serbia has developed a methodology for the division of firms/enterprises according to number of employees:http://www.apr.gov.rs Large enterprises. – more than 250 employees; Medium enterprises – 50–250 employees; Small enterprises 10-50 employees; Micro enterprises – less than 10 employees. More information available at: 5 6 EQUAL RIGHTS TRUST some interviews beinggiven anonymously. representativesprivateof governmentand was toagreeit necessary toentities, from input gain to order in stakeholders, key of representativecross-section a comprised individuals these While (57). organisations and groups stakeholder necessarily were onlyto able interview a limited sample of individuals from key Consultants Research the research, the for available months 12 the Thirdly,in ing caselaw ondiscriminationinSerbia. judicial practice. Further work may beneeded to comprehensively analyse exist instances ofjudicialpracticeraise that the adequacyofexisting questions about certain highlights it Instead, discrimination. siveon caselawexistinganalysis of comprehen a conduct to purport not does study The laws. equality Serbia’s of tive protection inpractice. Oneofthese measuresinterpretation isthejudicial measuresare that tonecessary ensure Serbia’sthat practicallawsequality provide effec and legal of range wide a analyses study the of Three Secondly,Part tinue to suffer, despite theformal protection for non-discrimination. subjective experience of certainsurvivors of discrimination in Serbiawho con the highlight to intended is project this of part as commissioned research field the of analysispatterns of discriminationcomprehensive in Serbia through a extensive field research.conduct Rather,to the attempt not does study the First, a numberoflimitationsinthescopestudy. current Commissioner and private sector organisations. This focus necessitates the authorities, state lawyers, discrimination, of survivors with interviews and analysis desk-based through Serbia in equality on framework policy and legal The primary objective of the study is to evaluate theeffectiveness of the current Scope andLimitations oftheStudy the draft. The feedbackreceived from theWorkingwas subsequently incorporated into recommendations. collaborativelyits formulatedand findings, its and draft the two-day validation conference in Serbia in June 2018, at which they interrogated a attended WorkingGroup The process. validation a to subject was study draft Following the completion of the research and the preparation of a first draft, the 2016), andasleadingequalitylaw academicsinSerbia. (2010- Serbia in Equality of Protection the for Commissioner the to Assistant former and (2010-2015) Serbia in Equality of Protection the for Commissioner inaugural former respectively, the as, experience professional extensive their Finally,Professor would notbeidentifiedinthestudy. Minority Rights, the participants agreed to be interviewed on the basis that they Petrušić and Ms Beker, the Research Consultants, drew upon drew Consultants, ResearchBeker, the Ms and - - - - 1.5 Country Context in practice equality

The Republic of Serbia (Serbia) is a landlocked country situated in south-eastern7 Europe, in the centre of the SerbiaBalkan has Peninsula, an important and its geopolitical capital city position is Belgrade. as it The population at the time of8 the most recent census, taken in 2011, was approximately 7.2 million people. stands at the crossroads of Eastern and Western Europe, and shares borders background and context tiationswith eight for countries: accession Bulgaria; to the EU Romania; which remain Hungary; underway. Croatia;9 Bosnia and Herzego- vina; Montenegro; Albania; and Macedonia. In 2014, Serbia opened formal nego- The Constitution provides that there are two autonomous territories within Serbia:

10 The administrative divisions of the Autonomous Province of Vojvodina (Vojvodina); and the Autonomous Province of Kosovo and Metohija (Kosovo and Metohija). Serbia include: the two autonomous provinces; the Belgrade region; the Šumadija and Western Serbia region; and the Southern and Eastern Serbia region. diversity. While the majority of the population identify as Serbian and identify Serbia’s geographical position contributes11 there to its are ethnic, 21 other linguistic ethnic and groups religious with 12 many speaking their own language. Following Serbian as their mother tongue (88.1%), more than 2,000 members, Serbs, the largest ethnic groups are: Hungarians (mostly living in Vojvodina); Roma (mostly living in Southern and Eastern Serbia, and Vojvodina);13 Bosniaks (mostly living in Šumadija and Western Serbia); and Albanians. Hungarian,14 Bosnian and Roma are the most commonly spoken languages after Serbian. Vojvodina has the most diverse population in Serbia,15 with more than 20 minorities and four minority languages in official use.

The main religion of Serbia is Orthodox16 Christianity (84.6%), followed by Roman Catholicism (5%) and Islam (3%). While no official statistics are available, the

7 Constitution of the Republic of Serbia 2006, 2011Article Census 9. of Population, Households and Dwellings available at: 8 Statistical Office of the Republic of Serbia, , 2011, http://popis2011.stat.rs/?lang=en; this excludes the Autonomous Province of Kosovo and Metohija. https://ec.europa.eu/ . 9 See; European Commission, “Serbia”, updated 6 December 2016, available at: 10 neighbourhood-enlargement/countries/detailed-country-information/serbia_en 11 See above, note 7, Article 182. available at: . Government of the Republic of Serbia, “National Minorities”, visited 24 September 2018, 12 http://www.srbija.gov.rs/pages/article.php?id=40 available at: Government of the Republic of Serbia, “Population, language and religion”, visited 24 September 2018, http://www.srbija.gov.rs/pages/article.php?id=36; for the full statistics from the 2011 Census, see above, note 8. 13 Ibid.See above, note 11. 14 http://www. . 15 Government of the Republic of Serbia, “Vojvodina”, visited 24 September 2018, available at: srbija.gov.rs/pages/article.php?id=20618 16 See above, note 12. 7 8 EQUAL RIGHTS TRUST 24 23 22 21 20 19 18 17 sexu and tortured wounded, and killed were civilians of thousands which in 1992. in Bosnia by followed independence, declared Macedonia and Slovenia, Croatia, 1991, In nationalism andmovements for independencewithintheconstituentnations. emergent to due SFRY former the in nations different the between conflicts to rise gave 1980s the of end The 1980. in death his until Tito President by ruled Slovenia. and Montenegro, Macedonia, Croatia, Herzegovina, and Bosnia comprising (SFRY),Yugoslavia of Republic Federal Socialist the of From the end of the Second World War until the early 1990s, Serbia formed part 1.6 of 29.6,placedit77 Gini Income coefficient, which measures inequality in the distribution of wealth, in its Human Development Index (HDI) for 2015, with an HDI of 0.776. lion. growth until 2013. positive to return not did it and 2007, in crisis financial global the by hard hit While Serbia’s economy grew at a solid rate over the period 2001 – 2008, Roma located throughout thecountry.” and south, the in Albanians ethnic region, Sandzak southwest (Slavic the in Bosniaks Muslims) include Muslims Province. Vojvodina in residing Croats and Hungarians ethnic predominantlyare “Catholics follows: as Serbia in followers US Departmentof State summarises the geographicaldistribution of religious 25

of 5.4%. averageannual ratean at grewproduct domestic Serbia’sgross period, this during that indicates report Ibid. 2018, available at:https://www.britannica.com/place/Yugoslavia-former-federated-nation-1929-2003. https://www.britannica.com/place/Serbia/Government-and-society. org/en/content/income-gini-coefficient available at: &tbar=y&dd=y&inf=n&zm=n&country=SRB. worldbank.org/data/views/reports/reportwidget.aspx?Report_Name=CountryProfile&Id=b450fd57 en/country/serbia/overview development model 2011–2020 www.state.gov/documents/organization/281200.pdf World Bank in Serbia, “Overview”, updated 11 October 2018, available at: available 2018, October 11 “Overview”,updated Serbia, in Bank World nylpei Bianc, Ygsai (omr eeae Nto 12–03” vstd 4 September 24 visited 1929–2003)”, Nation Federated (Former “Yugoslavia Britannica, Encyclopaedia at: available 2018, September 24 visited Society”, and Government “Serbia: Britannica, Encyclopaedia Programme,Development Nations United Programme, Development Nations United World Bank,“CountryProfile: Serbia”, visited 24September 2018,available at:http://databank. FREN, Economy of Faculty and MAT Institute Economic State, of Department US 20 The United Nations Development Programme ranked Serbia in 66 DevelopmentProgrammein rankedNations SerbiaUnited The Recent Historical andPolitical Context

http://hdr.undp.org/sites/default/files/HDR2016_EN_Overview_Web.pdf 25 Each declaration of independence resulted in violent conflict violent in resulted independence of declaration Each 19 th In 2016, Serbia’s gross domestic product was US $38.80 bil outof187countries. Serbia 2017 . , 2010, p. 6, available at:

International Religious Freedom Report .

“Income Gini coefficient”,Gini 2013, “Income Human Development ReportOverview 2016: 17 22 . http://pdf.usaid.gov/pdf_docs/pnadz058.pdf Serbia post-crisis economic growthand

availableat: http://www.worldbank.org/ , 2017, availableat: 2017, , 23 The SFRY was .

http://hdr.undp. 21, . 23, p. 2016, , 21

Serbia’s 18 th it was it https:// place ; the 24 - - ally abused in detention camps and displaced from their homes. in practice equality 26 responsible for serious violations of international humanitarian law In committed 1993, the inUN the Security territory Council of the established former SFRY an international from 1991. tribunal to prosecute persons when the Dayton Peace Accords were signed.27 The remaining republics of 28 The conflicts ended in 1995

Serbia and Montenegro declared a new Federal Republic of Yugoslavia which 29 ofexisted Serbia until was 2003 adopted. when the State Union of Serbia and Montenegro was formed. background and context In June 2006, Montenegro declared independence, and the current Constitution

The status30 of Kosovo, currently the Autonomous Province of Kosovo and Metohija of Serbia, remains a source of significant contention. In 1998, a campaign for31 greater autonomy from ethnic Albanians in Kosovo escalated into a civil war, which culminated in forces from the North Atlantic Treaty Organization (NATO) bombing Serbia in the spring of 1999. In June 1999, Serbian military and police thisforces day. withdrew from Kosovo, and the UN Security Council authorised The an position interim UN administration32 and a NATO-led security force in Kosovo which33 continues to In 2008, Kosovo unilaterally declared independence. of the Government of Serbia is that “Serbia will never recognise the unilaterally proclaimed independence of Kosovo” and “the future status of the southern Ser- bian province can only be defined within the framework of adequate principles and norms of the United Nations and other international organisations,34 with the respect of the constitutional order of the Republic of Serbia”.

In recent years, restrictions on political freedoms in Serbia have and increased. an erosion In 2017, Freedom House decreased Serbia’s rating in terms of political35 rights due to “serious irregularities in the 2016 parliamentary elections”, in political rights and civil liberties under Prime Minister Vučić due to political

Ibid. , BBC News available at: https://www.bbc.

26 ; BBC News, “Balkans war: a brief guide” , 18 March 2016, co.uk/news/world-europe-17632399; UN International Criminal Tribunal for the former Yugoslavia, “About the ICTY”, visitedResolution 24 September 808 2018, available at: http://www.icty.org/en/about. Resolutions that are applicable to the operation of the International Criminal Tribunal for the former 27 UN Security Council, , UN Doc. S/RES/808, 22 February 1993; for a full list of the UN . Yugoslavia, see: UN International Criminal Tribunal for the former Yugoslavia, “Statute of the Tribunal”, visited 24 September 2018, available at: http://www.icty.org/en/sid/135Dayton Peace Agreement available at: . 28 Organisation for Security and Co-operation in Europe, , 14 December 1995, 29 https://www.osce.org/bih/126173 Ibid.See above, note 7. 30 , Article 182. 31 See above, note 24. Resolution 1244, 32 UN Security Council, UN Doc.BBC S/RES/1244, News 10 June 1999. http://news.bbc. . 33 BBC News, “Full text: Kosovo declaration”, , 17 February 2018, available at: co.uk/1/hi/world/europe/7249677.stm 34 Government of the Republic of Serbia, “Kosovo-Metohija”, visited 24 September 2018, available at: http://www.srbija.gov.rs/pages/article.php?id=20619.Freedom in the World 2017: Serbia https://freedomhouse.org/ 9 . 35 Freedom House, , 2017, available at: report/freedom-world/2017/serbia 10 EQUAL RIGHTS TRUST 43 42 41 40 39 38 37 36 democracy, parliamentary a (1992). Montenegro and Serbia of ter Char Montenegro,Constitutional and replacingthe Serbia of Union State the of dissolution the after 2006, in adopted was Serbia of Constitution current The 1.7 ity ofcomplaintsreceived related to violationsofsocialandeconomicrights. situation and an expressed lack of legal certainty”, of therightsstatus ofcitizens inSerbiaas “marked byunfavourable an economic ern SerbiaRegion. primarily concentrated in non-urban areas, especially in the Southern and East remainedpoverty that and Europe, in poverty of risk at people of rates highest the has Serbia that 2017 in reportedCSO, a Rights, Human for Centre Belgrade work, with unemployment among young people being significantly higher. for searching person fifth everynearly affects Unemployment Serbia. in orated deteri has rights social and economic of protection Finally,the years,recent in deterring ordiscouraging themfrom freely expressing theiropinions”. of means a as society civil of members other and defenders rights human ists, freedom of expression on Serbiaand called to refrain from “prosecuting journal on restrictions about HRCexpressedconcern the 2017, observationsin cluding has reported persistentthreats to itsindependenceinstitution. as an institutions”.and bodies ent ical opinion on Government and its policies, (…) as well as attacks on independ for debate on issues of public importance, organized campaigns against any crit space “narrowing the at concern greatexpressing 2017, March in (HRC)mittee identified a similar trend in their joint submission to the UN Human Rights Com pressure beingexerted on independent media and CSOs. 45 44

Ibid. the%20Protector%20of%20Citizens%20for%202017.pdf. https://www.ombudsman.rs/attachments/article/5671/Regular%20Annual%20Report%20of%20 at: bgcentar.org.rs/bgcentar/eng-lat/wp-content/uploads/2018/03/Human-rights-in-Serbia-2017.pdf. uploads/2014/11/Second-National-Report-on-Social-Inclusion-and-Poverty-Reduction-final.pdf. thein Republic Serbia of https://www.ombudsman.org.rs/attachments/article/134/Introduction_2016%20Annual%20Report.pdf. rs/wp-content/uploads/2017/02/INT_CCPR_CSS_SRB_26659_E.pdf RightsHuman UN Committee 119 Ibid. See above, note 7. Ombudsman, Serbian See above, note 38,p.4. Rights, Human for Centre Belgrade Serbia, of Republic the of Government HRC, Ombudsman, Serbian Belgrade, House Rights Human Branches ofGovernment andStatutory Bodies , Articles2,3,52, 100. Concluding Serbia Observations: 41 RegularAnnual Report theof Protector Citizensof for 2017 In the past two years, the Ombudsman has described the described has Ombudsman the years, two past the In Regular Annual Report ofthe Protector ofCitizens for 2016 21, . 4 aalbe t http://socijalnoukljucivanje.gov.rs/wp-content/ at: available 14, p. 2014, , Joint NGO ReportJoint onkey elementsthe of in Serbia:situation rights human th Session - March 2017 37 45 Human Rightsin Serbia: 2017 The Serbian Ombudsman (Protector of Citizens) of (Protector Ombudsman Serbian The anddivides powers amongst three branches of , UNDoc.CCPR/C/SRB/CO/3, 10April2017,Paras 38–39. Second National Report onSocialInclusion and Poverty Reduction 44 The Constitution establishes Serbia as , 2017, p. 3, available at: 42 andindicated themajor that , 2018, p. 26, available at: http://www.availableat: 26, p. 2018, , . 36 Leading Serbian CSOs http://kucaljudskihprava. , 2018, p. 5, available 5, p. 2018, , , 2017, available at: at: available 2017, , 38 In its con In 39 40 The 43 ------

The Constitution in practice equality provides that “[r]elations between three branches of power46 shall be based on government: the executive; the legislature; and the judiciary. 47 Thebalance President and mutual of Serbia control”, serves and as guarantees the head theof stateindependence and is elected of the judiciary.directly in The Constitution 48 49 general elections, for a maximum of two five-year terms. confers a range of powers and functions on the President, including represent- background and context ing Serbia in international matters, commanding the army, promulgating laws, granting 50amnesties and awarding honours, and proposing candidates for Prime Minister. isters.The Constitution51 provides that executive power shall be exercised and isby elected the Gov by- ernment,52 comprising the Prime Minister, one or more Vice Presidents53 The and Prime min- The Prime Minister serves as the head of government, 54 liamentthe National and proposingAssembly uponcabinet the ministers recommendation for approval. of the President. Minister is responsible for presenting the agenda of the55 government to the par- of Serbia. periodThe Constitution of 56four years establishes through direct the National elections. Assembly The current as a unicameral President parliamentof Serbia is The National Assembly comprises57 250 deputies who are elected for a

Aleksandar Vučić who previously served as Prime Minister from 2014 to 2017. The current Prime Minister is Ana Brnabić. The most recent parliamentary58 elec- tionsThe Constitution were held in vests 2016 judicial and the power next inelections the courts are andscheduled guarantees for 2020. the independ ence of the judiciary. The judicial hierarchy in Serbia is outlined in Table 1A 59 -

Ibid.

46 Ibid., Article 4. 47 Ibid. 48 Ibid., Article 114. 49 Ibid., Article 116 50 Ibid., Articles 111–114 51 Ibid., Article 122. 52 Ibid., Article 125. 53 Ibid. 54 Ibid., Article 127. 55 Ibid., Article 125. 56 Ibid., Article 98. 57 , Article 100. 58 National Assembly of the Republic of Serbia, “Multi-party National Assembly of the Republic of Serbia (1991–. 2018)”, visited 24 September 2018, available at: http://www.parlament.gov.rs/national-assembly/the- 11 assembly-1804-2018/multi-party-national-assembly-of-the-republic-of-serbia-(1991–2018).2174.html 59 See above, note 7, Article 142. 12 EQUAL RIGHTS TRUST 69 68 67 66 65 64 63 62 61 60 statutory law. apply,lawcase and secondary,a as functions explanatory sourcesubordinate to courts to follow the rules of principles laid down in previous decisions) does not are notrecognised as bindingprecedents: the which serves as the primary source of law. Within this system, judicial decisions system codified a into transposed are principles legal procedural and stantive Serbia’s legal system is based on principles of civil law; accordingly, the core sub respect to decisionsof theConstitutionalCourt. Court of Cassation. Supreme the of session general the at appointedfive are another and Serbia, of tices are appointed by the National Assembly, five are appointed by the President Court comprises 15 judges who are appointed for a term of nine years. exhausted.Constitution”,havebeen remedies legal other if entities violatesor minorityrights “human andfreedoms guaranteed by the Constitution, the with treaties laws, of constitutionality the to ing The Court Constitutional has original jurisdiction with respect to matters relat Appellate Court. Misdemeanour the to appealable are decisions their and proceedings meanour Courts. High the to appealable are decisions their and law criminal torespect with tion Courts areto appealable theAppellate Courts. ceedings, pro criminal and civil of range a in instance first of courts are Courts High The tive Court. Commercial Court of Appeal, Misdemeanour Appellate Court, and the Courts, Administra Appellate the of decisions for appeal of court a and resort last of court a below. 71 70

Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. 40/2015 –otherlaw, 13/2016,18/2016and113/2017,Article11. 106/2015, 101/2013, 101/2011, 78/2011, 31/2011, 101/2010, 104/2009, 116/2008, Serbia”,Nos. of 2018, available at: See above, note 7,Article167. See above, note 7, Article 143; Law on the Organisation of Courts of Serbia, “Official Gazette of the Republic September 24 Courts”,visited of “Jurisdiction Cassation, of Court Supreme Serbia, of Republic also: See 60 , Article22. , Article24,Para 1.1. , Article23. , Law ontheOrganisation ofCourtsSerbia, Article15(1). , Article172(2). , Article172. , Article170. , Article167. , Articles27–28. 65 TheSupreme Court ofCassation isthehighest courtinSerbia. h Mseenu Cut hv jrsito wt rset o misde to respect with jurisdiction have Courts Misdemeanour The 63 62 nldn udr ebas ii eult lw. eiin o te High the of Decisions laws. equality civil Serbia’s under including 66 https://www.vk.sud.rs/en/jurisdiction-courts-0

71 In Part Three, we outline the issues of judicial delay with delay judicial of issues the outline we Three, Part In 68 and petitions alleging that theconductof state andpetitionsalleging 67 h cmlac o rtfe international ratified of compliance the stare decisis 64 The Basic Courts havejurisdic Courts Basic The . doctrine (which 69 TheConstitutional 61 70 It acts as Itactsas Five jus binds ------Table 1A: in practice equality

SupremeJudicial Court hierarchy of Cassation in Serbia, with number of courts indicatedConstitutional in brackets Court Commercial Appellate Court Appellate Court Admin Appellate Courts (4) Misdemeanour istrative Commercial Court -

High Courts (25) Misdemeanour background and context Courts (16) Courts (44) Basic Courts (66)

Finally, of particular significance Article for 1the of present the LPD study, establishes is the role the ofCommissioner the Commis- sioner, as well as that of the72 Ombudsman. In 2009, Serbia adopted a comprehensive equality law, the LPD. as an “independent state organ” in Serbia with a formal mandate to enforce the73 LPD and protect the rights to equality and non-discrimination more broadly. The Commissioner is the only statutory body in Serbia with a specific mandate once.regarding the rights to equality and non-discrimination. The Commissioner is Assemblyelected74 by onthe the National situation Assembly of equality for ain term Serbia. of five The years, LPD and confers can bea wide re-elected range of powers The on Commissioner the Commissioner is required which to relate submit both 75an to annual the enforcement report to the of National the LPD to address systemic patterns of discrimination. We discuss the mandate and functionsitself and, ofsignificantly, the Commissioner enable the in detailCommissioner in Part Three76 to seek of the legal study. and policy reform

withThe Ombudsman a broad mandate is a national to protect human and promote rights institution, respect for independent freedoms and and rights. autonomous from government, established by the Law on the Protector of Citizens,77 The Ombudsman is established with powers to The Ombudsman is elected 78by the National Assembly for a term of five years, and can be re-elected once. launch initia control the work of administrative bodies, including, amongst others,79 the power to establish violations resulting from their acts or failures to act, and to initiate- Constitutionaltives for the establishment Court proceedings or amendment for the assessment of laws, regulations of the constitutionality or80 general acts of if where deemed significant for the protection of citizens’ rights,

72 Ibid.Law on the Prohibition of Discrimination (LPD), “Official Gazette of the Republic of Serbia”, No. 22/2009. 73 Ibid., Article 1. 74 Ibid., Articles 28–29. 75 Ibid., Article 33(5). 76 , Article 33. 77 Law on the Protector of Citizens, “Official Gazette of the Republic of Serbia”, Nos. 79/2005 and 54/2007, ArticlesIbid. 1–2. 78 Ibid., Article 4. 79 Ibid., Article 17. 80 , Article 18. 13 14 EQUAL RIGHTS TRUST 84 83 82 81 and Social Economic, on Covenant International the under protected grounds race, and ethnicity of grounds on data disaggregated process and collect systematicallyto failureSerbia’s at concern expressed ities Disabil with Persons of Rights the on Committee the (CEDAWand Committee) Women Against Discrimination of Elimination the on Committee the (CESCR), Rights Cultural and Social Economic, on Committee the HRC, the observations, gregated on groundsdata of discrimination in Serbia. Intheir recent concluding disag of absence the to due quantitativedata, than ratherqualitative evidence, toimportant is It notereports that ondiscrimination in Serbialargely rely on crimination across thecountry. dis of differentgrounds researchon field conduct to werecommissioned CSOs presentstudy,the for addition, In discrimination. of instances fiveparticular on preparedreportsand Serbia,special in reportsParliamentdiscrimination to on annual submitted has Commissioner the 2010, since level, national the At cess. CSOs have made detailed 2018. submissions toJune both in UN treaty concluded bodies and and the UPR months pro 12 past the over place taken has Council Rights Human UN the by conducted (UPR) Review Periodic Universal Serbia’s ing the rights to equality and non-discrimination. protect treaties UN core the with compliance Serbia’s on observations cluding con issued have bodies treaty UN main seven the of each years, six past the in level,international the Atdisadvantage Serbia. and in discrimination persistent There is a wealthof analysis at theinternationallevel andnational regarding in Serbia. necessary to provideillustrative an insight into thescaleofongoinginequality is it – practice?” in protection provide to failing equality on framework policy However, before focusing on the study’s key question - “Why is Serbia’s legal and the scope ofthisstudy to explore these patterns of discrimination inany depth. serious and seemingly systemic Itis beyond patterns of discrimination persist. Two),significant, Part in detail in analysed (as Serbia in discrimination against While there have undeniably beenmany improvements inthelegalprotection 1.8 mandate oftheCommissioner. sole above,notedthe as is which, non-discrimination, and equality torights the acts. general and regulations laws, 86 85

funkcija at: available 2012, May “Aboutus”,27 Ombudsman, Ibid. CRPD Committee, CEDAW Committee, See above, note 39,Para 9. See above, note 1. see: Ombudsman, the of mandate and function the regarding details further For Discrimination in Serbia: Why inSerbia: Discrimination Studythis is Needed? , Article19. . aswell astheLaw ontheProtector ofCitizens. Concluding Serbia Observations: Concluding Serbia Observations: 82 81 However, this mandate does not extend to extend not does However,mandate this , UNDoc.CRPD/C/SRB/CO/1, 23May 2016,Para 63. , UN Doc. CEDAW/C/SRB/CO/2-3, 30 July 2013, Para 2. http://ombudsman.rs/index.php/o-nama/uloga-i- 83 In addition, the third cycle of 84 sex, 85 disability, ibid. and Serbian and 86 andall ------equality in practice equality amongCultural other Rights rights. to enable an “accurate assessment” of Serbia’s compliance with its treaty obligations87 to guarantee the rights to equality and non-discrimination, The European Commission’s Network of Legal Experts on Non-Discrimination similarly cited the lack of quantitative88 data as a “huge prob- Overalllem in assessing Patterns and of Discrimination monitoring discrimination”. background and context and the Commissioner provide a useful overview of the key forms of discrimina tionDespite and the disadvantage absence of in quantitative Serbia today. data, recent reports from UN treaty bodies - sioner as being especially susceptible to discrimination in Serbia. Discrimination A number of groups have been identified by the treaty bodies and the Commis- against national minorities, particularly the Roma people, has been highlighted as a systemic problem. For instance, the HRC has highlighted “widespread discrimination”89 against the Roma in relation to employment, housing and education, while the CESCR has expressed concern that the economic, social and cultural rights of national and ethnic minorities, refugees and internally dis- applied.placed persons,90 The most including recent Roma, annual continue report of to the be Commissionerinterfered with, included and that the this fol is lowingexacerbated assessment by the offact the that situation anti-discrimination of the Roma minority: legislation is not systematically - The position of the Roma national minority continues to be extremely fragile irrespective of fewer complaints that were filed in 2016, and they tend to be discriminated against in all spheres of social life, primarily in the area of education, labour and employment and in exercising their rights before public authorities.91

Discrimination is also pervasive on the basis92 of disability, with the HRC noting difficultiesthe marginalisation faced by personsof this group with disabilitiesand continued regarding discrimination access to withjustice, regard educa to- tion, employment and political participation. The CESCR has likewise identified 93 accessing economic, social and cultural rights. Similarly, the HRC has brought attention to the discrimination faced by persons living with HIV, particularly in

Concluding Observations: Serbia

87 CESCR, , UN Doc. E/C.12/SRB/CO/2, 10 July 2014, Para 7. 88 See above, note 4. 8990 See above, note 39, Para 14. 91 See above, note 87, Para 11. Abridged version of 2016 Regular Annual Report Commissioner for the Protection of Equality, , 2017, p. 57, available at: http://ravnopravnost-5bcf.kxcdn.com/wp-content/uploads/2017/10/Poverenik-Skraceni- 92 godisnji-izvestaj-za-2016-engl-za-odobrenje-za-stampu.pdf. See above, note 39, Para 16. 93 See above, note 87, Para 11. 15 16 EQUAL RIGHTS TRUST 101 100 99 98 97 96 95 94 results of this study showperceptionpublic that of the groupsto mostliable regardingopinion inSerbia public on theprevalence of discrimination. findings detailed contains also report annual recent most Commissioner’s The temic discrimination,theCESCRurged Serbia to: views.” political or beliefs religious [and] status, financial organizations, other and union trade political, in membership status, family or highlighted thefactdiscrimination persists also that on thegrounds of“marital has Commissioner the discrimination, of grounds common these to addition In market, while gender-based violence continuesto beapressing problem.” noted“women that are particularly exposed to discrimination on thelabour womensubjected being to severe forms of violence. in result which patterns cultural “prevalent”patriarchal identified has HRC the instance, For women. of ill-treatment the to contribute also attitudes Cultural nity initsmostrecent concludingobservations onSerbia. ber of acts of discrimination, intolerance and violence against the LGBT commu num high”“very a highlighted has HRC The Serbia. within problem significant Discrimination on thebasisof sexualorientation andgender identity is also a faced by personsliving withdisabilitiesasfollows: the contextof healthcare.

esn lvn i Sri (xldn Ksv ad eoia. e: omsinr o te rtcin of Protection available the at:http://ravnopravnost.gov.rs/rs/izvestaj-o-istrazivanju-javnog-mnjenja. for Commissioner See: Metohija). and Equality, Kosovo (excluding Serbia in living persons Ibid. Ibid. The research was conducted by an independent research agency in 2016, based on a survey of 1,200 of survey a on based 2016, in agency research independent an by conducted was research The Seeabove, note 87,Para 11(a). See above, note 91,pp.56–57. See above, note 39,Para 12. See above, note 91,p.14. See above, note 39,Para 12. , Para 18. , p.57. rity, housing,health andeducation. sons andgroups with regard to access social secu to employment, gay, bisexual andtransgenderpersons andother marginalized per ugees andinternally displaced persons,including Roma, lesbian, against membersofethnicminorities, personswith disabilities, ref itseffortsto promote andcombatIntensify discrimination equality particular in the field of education, professional development and development professional education, of field the in particular discriminated againstall areasin private of public life,and in Persons belongto with agroupdisability people who of are most ities aswell as inthe area oflabourandemployment. extension ofpublic services orutilization ofpublicspaces andfacil Public Opinion Survey Report“Citizens’ Attitudes towards inSerbia” Discrimination 94 The Commissioner summarised the discrimination 100 97 TheCommissioner has 96 99 95 Tothis sys tackle - - - - 101 98 2016, , The - - - equality in practice equality treaty bodies and the Commissioner: facing discrimination within Serbia largely reflects those identified by the UN Citizens view the Roma, members of the LGBT population and poor persons as those most discriminated against in the Republic of Ser- bia, while the area of labor and employment is singled out as the field where discrimination occurs most frequently.102 background and context

The annual report summarises the findings of research that the Commissioner oncommissioned the prevalence in 2016 of discrimination which surveyed 103in Serbia 1,200 waspersons summarised across the as country. follows: A similar survey was conducted in 2013. Within the annual report, public opinion [D]espite positive trends, the country is still facing major challenges in its attempts to protect citizens against discrimination. The survey shows that although the conditions necessary for efficiently combatting discrimination have improved, this has not yielded tan- gible results yet. Thus, the number of citizens who think that discrimination in Serbia is rampant is the same as it was in 2013 and the number of those who think that discrimination is acceptable remains unchanged. 104 Examples of Discrimination in Specific Areas of Life

While a comprehensive analysis of patterns of discrimination in Serbia is out

- aspectsside the ofscope discrimination of the present in Serbia.study, research What follows commissioned is not an overarchingas part of the assess study, including field research by five Serbian CSOs, allows for an analysis of certain persist in Serbia today. This summary explores three key areas of life regu- ment of patterns of discrimination, but rather examples of discrimination which breadth and scope of the discrimination faced. They are illustrative of the wider- lated by law: employment, education and health care. The findings indicate the patterns of discrimination and inequality identified by the Commissioner and DiscriminationUN treaty bodies in as Employment referenced above.

personsDiscrimination belonging in the to fieldnational of employment or ethnic minorities. affects a range of vulnerable groups in Serbia including women, persons with disabilities, young people, the elderly and

102

See above, note 91, p. 15. 103 The 2013 survey was conducted on behalf of theReport Commissioner on Public for Opinion the Protection Research of “Citizens’Equality by Attitudes the Centre on Discriminationfor Free Elections in Serbia” and Democracy, with the support of the United Nations Development Programme. See: Commissioner for the Protection of Equality,. , 2014, available at: http://ravnopravnost.gov.rs/rs/istrazivanje-javnog-mnenja- odnos-gradana-prema-diskriminaciji-u-srbiji 104 See above, note 91, p. 15. 17 18 EQUAL RIGHTS TRUST 110 109 108 107 106 105 disproportionately disadvantagewomen dueto theirexistingchild care respon indirectly discriminate against women by prescribing workingconditions which and disability. ple discrimination in theworkplaceon thebasisof their sex and/orethnicity multi experience others, amongst disabilities, with women and women Roma ment andprofessional barriers on returning to work after maternity leave. of discrimination inthecontext Thisof employment. includessexual harass study highlightwomen that in Serbia experience a widerange of different forms The reports oftheCommissioner and focus groupdiscussions convened for this berry pickers which stated: against anemployer who published anadvertisement seekingseasonal rasp convictions. about their marital and family status, health status and information on previous in thecontextof recruitment. The company hadcandidates provide information discrimination direct challenge to companyprivate a against proceedings filed their intentionsabout to startafamily. job”, as “seeking woman of pleasant appearance, aged from 20-30, for administrative ments which specify that applicants must be of a particular gender and age, such recruitment processes. Examples of such discrimination includes job advertise direct discrimination on the grounds of age, sex and family status are common in such practicessuggests that are common.The Commissioner has reported that we present evidence from interviews with private sector representatives which acteristics remainscommon phenomenoninSerbia. a In Part Three ofthestudy Direct discrimination inrecruitment withrespect to arange of protected char

images_files_Poseban_izvestaj_o_diskriminaciji_zena_priprema_korigovana-1.pdf. Serbia Trust focus group meeting, 15November 2017,Novi Pazar. November 2017, Niš; Equal Rights Trust focus group meeting, 10 November 2017, Belgrade; 1 Equal Rights meeting, group focus Trust Rights Equal godisnji-izvestaj-za-2016-engl-za-odobrenje-za-stampu.pdf; http://ravnopravnost-5bcf.kxcdn.com/wp-content/uploads/2017/10/Poverenik-Skraceni-at: available of-Equality-2015-Regular-Annual-Report-1.pdf. http://ravnopravnost-5bcf.kxcdn.com/wp-content/uploads/2016/09/Commisssioner-for-the-Protection- Seeabove, note 105,p.99. pdf ravnopravnost-5bcf.kxcdn.com/wp-content/download/cpe_annual_report_2012. wp-content/download/redovan_izvestaj_2013_eng.pdf. Equality, of Protection the for Report for 2013 Commissioner example: for See, omsinr o te rtcin f Equality, of Protection the for Commissioner See, for example: Commissioner for the Protection of Equality, Commissioner for the Protection of Equality, Commissioner for Protection of Equality, 105 and directand questions posedto femalecandidates interviews duringjob . of employment. sible consequences thatcan themthe during arisebetween period nised disagreement with workers ofother nationalities andthe pos Roma workers are notacceptable for this positiondueto recog , 2015, p. 170, 107 110 n 05 te omsinr lo ucsfly ie proceedings filed successfully also Commissioner the 2015, In The Commissioner has also foundemployers that frequently available at: http://ravnopravnost-5bcf.kxcdn.com/wp-content/uploads/2012/11/ 21, . 8 aalbe t http://ravnopravnost-5bcf.kxcdn.com/ at: available 98, p. 2014, , 108 Regular Annual Report for 2012 Abridged versionRegular of2016 Annual Report Regular Annual Report for 2015 106 In 2013, the Commissioner successfully Special Report onDiscriminationofWomen in , 2013, p. 76, available at: , 2016, p. 101, available at: at: available 101, p. 2016, , RegularAnnual , 2017, p. 79, - - http:// 109 ------sibilities.111 in practice equality rectly discriminated against a female employee in the following circumstances: In 2015, the Commissioner determined that an employer had indi- A police officer working in an active policing role who was a single mother of a child under the age of seven was demoted due to a selection process that indirectly discriminated against her due to her child caring responsibilities. The selection criteria for demotion included the failure to perform certain field work tasks outside of the police

headquarters. The police officer was assessed as having performed background and context poorly in relation to field work and was demoted. This decision was taken despite the fact that she had been unable to fulfil the field work requirement due to her child caring responsibilities.112

Discrimination against Roma persons in recruitment and in the conditions of

Rights Trust researchers for this study and described her experience of being dismissedemployment from is alsoher jobwidespread. as a cook inA Romaa restaurant woman, due known to prejudice as SJ, spoke regarding to Equal her ethnicity.

obtained employment as a cook in a restaurant. SJ described an inci dentSJ* had that finished occurred her to studiesher during to become her employment: a chef and, after many years, - I heard that one restaurant was looking for a cook, I applied for a job, and I was admitted! I was very happy because finally I was given an opportunity to work (…) I was working like a machine. I was silent, listening, I was not quarrelling with anybody, nor had I any kind of problems – either with the owner, or any of my colleagues.

One day, the waiter came into the kitchen to tell me that one of the guests liked the food that I had cooked, that he was delighted with it and that he would like to meet me. I was truly proud of myself and the waiter who came to me was glad, too. However, when I entered the restaurant and the guest saw me, I immediately knew from looking at him that I could not expect anything good. He realised from my appearance that I was Roma. He looked me up and down and said: “I didn’t know that Roma people can cook!” He immediately turned away from me and continued to make jokes about me with a man sitting at his table, without even looking at me. He said: “The black-haired one is cooking” and “I would let her cook up a little, but not here.” It was a shame for me. The waiter tried to alleviate the entire situation and said casually with a smile, “Yes, the girl is really good, she cooks so well!”, but the guest only pushed the plate away and asked for the bill without even trying the meal I had prepared.

111 19 112 See above, note 109, p. 81. Commissioner for the Protection of Equality, Opinion No. 07-00-488/15-02, 28 December 2015. 20 EQUAL RIGHTS TRUST 116 115 114 113 Roma children. indicates that teachers and fellow studentsfoster prejudice and stigmatowards children from regular to “special schools” is widespread. for education of children with disabilities), and the practice of transferring Roma (schools disproportionatelyarechildrenRomaschools” represented“special in the selectiveof theresidence application requirement for school enrolment. children. created segregated classes exclusively attended by internally displaced Roma pre- rural in as schools and elementaryschools which were found by such theCommissioner to have classes, separate into children Roma of segregation the Discrimination against Roma children ineducationtakes many forms. It includes particularly vulnerable to discriminationineducationSerbia. Roma children, children with disabilities and children who identify as LGBT+ are Discrimination inEducation 117

Roma inthe Territory ofthe Autonomous Province ofVojvodina march-2014.pdf http://www.errc.org/uploads/upload_en/file/serbia-education-report-a-long-way-to-go-serbian-13- OverrepresentationRomani of Children in“Special Schools inSerbia” nacionalne-pripadnosti-u-oblasti-obrazovanja http://ravnopravnost.gov.rs/prituzba-d-z-r-d-m-protiv-os-a-s-l-d-zbog-diskriminacije-na-osnovu- files_Poseban%20izvestaj%20o%20diskriminaciji%20dece_sa%20koricama.pdf at: available 29-30, pp. * Thenameoftheinterviewee hasbeenchangedto protect her identity Provincial Ombudsman of Novi Sad, Novi of Ombudsman Provincial Centre, Rights Roma European See above, note 113,p.30. at: available 2012, January 20 84/2012, No. Opinion Equality, of Protection the for Commissioner forCommissioner Protectionthe Equality,of a Roma woman.” –whatwasmattered tasty was thefact that the food was prepared by withoutleft a job. wasIt notimportantthat the food had prepared I had gone “too far” and dismissed her from the position.SJsaid,“Iwas to her work. After 10days, the headchef spoke with herandsaid she indicatedSJ that thefollowing colleaguesday her startingobjecting and, ifitwas necessary, hewould meetthem instead! said that cooks would beforbidden from meetingguests inthe future ble. Inthe kitchen, the questions started immediately. Theheadchef I went back to the kitchen, asifsomebody hadbeaten me.Ifelt terri 114 Discrimination creationincludes the of 117 . http://ravnopravnost-5bcf.kxcdn.com/wp-content/uploads/2012/11/images_ A LongWay To Go – Report by the European Roma Rights Centre: Implementation of Affirmative Measures in Elementary Education of Education Elementary in Measures Affirmative of Implementation Special Report onDiscriminationofChildren inSerbia . , 2017,pp.29–31. de factode 21, p 2–4 aalbe at: available 23–24, pp. 2014, , 116 In addition, research “Roma schools” by schools” “Roma . 113 - , 2013, , 115

equality in practice equality tion that one of her children had experienced at school. A Roma woman, S.M., told Equal Rights Trust researchers118 about the discrimina-

In 2013, S.M.’s daughter was enrolled in the first grade of an elementary school. From the very beginning, S.M. noticed that teacher was not tol-

incomeerant at andall towards asked for her understanding daughter. S.M. if informedany delays the in teacherpaying forabout school her background and context family’s financial situation and indicated that they do not have regular

expenses, such as excursions, occurred. Despite this, whenever the family was late in paying, the teacher denounced it before the whole class. The other pupils were harsh towards S.M.’s daughter and would laugh at her, saying: “You do not have money, you live in a container” and “You are Gypsy, you smell.” The teacher did not respond at all to this taunt- ing. S.M. was forced to enrol her daughter in another school. The Commissioner has reported that schools frequently ignore measures aimed at preventing discrimination and rarely take into account the fact that they are obliged to make additional efforts in order to provide more effective and timely protection for children from vulnerable social groups.119 The Commissioner has issued numerous recommendations to schools about the need to prevent intol particularly when Roma or other minority ethnicity children are involved in a- erance and discrimination120 among children on a national, racial or ethnic basis,

Childrenpeer conflict. and young people with disabilities are also particularly vulnerable to discrimination. Stereotypes and prejudices regarding their abilities are deeply 121 and segregation on the basis of disability rooted and widespread in Serbia, provideremains reasonableat issue. Further, accommodation where inclusive for children education with is,disabilities in theory, in provided, the form in practice, many schools and the responsible government department fail to needed to enable them to participate on an equal basis with others.122 of accessible transport, learning materials and teaching assistants, which are

Case Study Research Report to Equal Rights

118 Mreža odbora za ljudska prava u Srbiji (CHRIS), Case of S.M., 119 Trust, 2018. 120 Ibid.See above, note 113, p. 30. 121 Ibid.

122 . pp. 30–31. Research on Educational, Health and Social Support for Children with 21 Disabilities Center for Interactive Pedagogy, , 2013, p. 28. 22 EQUAL RIGHTS TRUST 123 with people including disabilities, with whichpeople CRPD 19 statesall cle that of childrenThe institutionalisation disabilities inSerbia with is contrary to Arti html:604684-Slepa-devojcica-ispasta-zbog-svadje-i-politike. http://www.novosti.rs/vesti/naslovna/reportaze/aktuelno.293. http://www.novosti.rs/vesti/naslovna/reportaze/aktuelno.293.html:604684-Slepa-de vojcica-ispasta-zbog-svadje-i-politike at: available http://www.novosti.rs/vesti/naslovna/reportaze/aktuelno.293.html:604517-Slepa-devojci ca-jos-bez-prevoza; Ilić, J., “A blind girl is crying over quarrel and at: politics”, able transportation”,without still girl “Ablind N, Živanović, and J. Ilić, novosti.rs/vesti/naslovna/reportaze/aktuelno.293.html:605004-Slepa-Nikolina-ici-ce-kolima-u-skolu; enforce the judgmentare ongoing. ateslegala precedent. However, theat publication,of time efforts to fully the result ofthe case ispublicly available, andthe judgmentitself cre ofSmederevskaMunicipality Palanka topublish the verdict ensure that with others. Themedia coverage ofthe case, andthe court order for the are accommodated such that they can access education basis onanequal thatthe withindividuals of needs particular protected characteristics The success ofthis case demonstrated that the to state ensure hasaduty the case including the nationalnewspaper “Večernje Novosti”. articlethein “Politika“, another threeoutletsmedia produced articles on wasprovided verdictfor daughter,his Monday,of as Besides2016. May 16 the the in required transport the that N.P.confirmed of father The Palanka did not appeal this verdict, and it became final on 29 April 2016. nent newspapers inSerbia –“Politika”. ofSmederevska The Municipality Palanka to publishthe verdict inthe oldest andoneofthe mostpromi and vice versa. TheCourt alsoordered ofSmederevska the Municipality to immediately provide transportation for the girl from hometo school sons with disabilities (Article 26(1)).TheCourt ordered the respondent of education (Article 19(2))andprohibition ofdiscriminationper (Articleof equality 4(2)),prohibition ofdiscriminationinthe provision the anti-discriminationlawonseveral grounds: violationofthe principle of Smederevska Palanka, haddiscriminated against N.P. Thus,itviolated fully litigated andthe Court found that the the respondent, Municipality with the Equal Rights Trust, prepared Thecase was the success lawsuit. and to avoid violationsofthe LPDinthe future. Praxis, inconsultation dation to take allnecessary measures to provide transportation for N.P., sioner, failed to the follow Municipality the Commissioner’s recommen Commis the by discrimination of finding a After LPD. the of regulations to education andfullinclusion inthe educational system, andviolated ofSmederevskaMunicipality Palanka prevented N.P. from equalaccess Municipality. Infailing to provide free transportation to school, the N.P. isanine-year-old visuallyimpaired girl from Smederevska Palanka Child withVisual Impairment Case Study ofFailure to Provide Reasonable Accommodation ofa Ilić, J., “Blind Nikolina will go to school bycar!”,school to go Nikolinawill “Blind J., Ilić, VečernjeNovosti , 13 May 2016, availableMay2016, 13 http://www. , at: Večernje NovostiVečernje Večernje Novosti , 10 May 2016, avail 2016, May 10 , 123

, 11 May 2016, ------equality in practice equality which states that disability should in no case be the basis for deprivation of lib erty.mental The disabilities, human rights have violations the right consequent to live independently, on institutionalisation and Article are 14 numer CRPD - cates that more than half of children with disabilities in institutions are excluded- ous. In one respect, it significantly restricts access to education. Research indi- Students are often excluded from education due to the physical inaccessibility 124of from the education system, while those enrolled only attend “special schools”. amongst employees in institutions and schools. background and context schools, the lack of adequate additional support 125and deep-set prejudice reported

RightsL.N. is Trust a woman researchers with a physical about the disability failure of who educational is currently institutions undertaking to make doc- reasonabletoral studies accommodation and is an activist for in her the disability. field of human rights. She spoke with Equal

In situations where auditoriums were situated in the basement, it was really difficult for me to go down there, because I use crutches. I have never asked for the auditorium to be modified, although I was told later that I was entitled to do so, because I felt very bad to think that the entire group should change the space just because of me. At that time, I did not perceive it to be discrimination, but now I would react and ask for the auditorium to be modified. I would ask for handrails to be fitted where the stairs lead to the new part of the faculty building. For years, I have been going up and down the stairs, holding the wall only, which is terrible. 126

ThereDiscrimination are numerous in Health serious Care issues of discrimination in the health care sector. and persons with mental health issues are particularly affected. people living with HIV/AIDS, people with hepatitis C, persons with rare diseases

There is significant social stigma towards people living with HIV/AIDS. Accord- ing to the Commissioner’s 2016 public opinion survey on the prevalence of discrimination, almost a third of citizens report that they do not want to socialise with persons living with HIV/AIDS, over 40% do not want a person living with HIV/AIDS to teach their children, and 61% of citizens127 would object to marrying, or their children marrying, a person with HIV/AIDS.

Exclusion and Segregation of Children with Disabilities in Residential Institutions from Educational System 124 Janjić, B., Beker, K., , Mental Disability Rights Initiative of Serbia, 2016, pp. 21–22, available at: http:// www.mdri-s.org/wp-content/uploads/2016/04/Publikacija-SRB-1.pdf.Ibid 125 , pp. 7–9, 49. Case Study 126 Udruženje studenata sa hendikepom (Association of Students with Handicaps), Case of L.N., Research Report to Equal Rights Trust, 2018. 127 Odnos građana i građanki prema diskriminaciji u Srbiji, Poverenik za zaštitu ravnopravnosti i Institut za ljudska prava „Ludvig Bolcman”, Beograd, 2016 23 24 EQUAL RIGHTS TRUST 130 129 128 tomatic ofawiderproblem. LGBT+community. toobstacle Discrimination an is also care accessinghealth for membersofthe missioner. 42 private health institutions) resulted in five complaints submitted to the Com persons living with HIV/AIDS conducted in 64 health institutions (12 public and hepatitis C. with living persons to etc.) manicure, (pedicure, services provide to salons the of refusal to due Commissioner the to complaints 52 in resulted salons metics Commissioner. the with filed were status HIV/AIDS of basis the on discrimination of complaints 64 testing, situation the of result a As practices. dental 300 than more examined testing situation 2014 C. hepatitis with living people as well as HIV/AIDS, with living people of services dental and health services, cosmetic to access the relationto in ination testing situation organised NGOs three 2014-2016, fromBetween 132 131

spojeno.pdf. http://ravnopravnost-5bcf.kxcdn.com/wp-content/download/regular_annual_report_of_the_cpe_2014_ 2015 and2016,available at:http://ravnopravnost.gov.rs/en/reports. http://www.ecmikosovo.org/en/Situation-testing. Kosovo, Issues Minority for Center European treated less favourably thanaperson who does not possess this characteristic in acomparablesituation: reveal andrecord discriminatory practices whereby a person who possesses aparticularcharacteristic is appointed shortly thereafter. Thenew director ordered that the physi tor ignored Stefan’s claimdirectora new but discrimination, of was the Health Center andto the director ofthe Health Center. Thedirec When hefelt better, hereported the case to the Legal Departmentof the sexual orientation to dowith it?!“ and make aprescription for the medication Ineeded.Whatonearth has expected herto doherpartofthe job –to prescribe the therapy for me otherplace, where you can but itwas her work expect that, place. I only whensomebody addressed you with wordsinsulting thein street someor any strengthwas (….)I shocked. I didnotknow howdifferent Itis to react. examine gays’. Ifeltshe saidthat, physically When havebad andIdidnot “Through anopendoorIheard the physician saying:‘Today, we don’t the lastpatientleftoffice,heasked when hewould beadmitted. when and card medical his gave He orientation. sexual presumed his 2014, he was refused health care by a physician at the Health Center of Stefan is 25-year-old gay man from a small town in South Serbia. In July See above, note 109,Commissionerfor theProtection ofEquality, pp.113–115. See above, note 108,pp.125–126. Equality,of Protection the for Commissioner More information available in the Commissioner for the Protection of Equality’s Annual Reports for 2014, Situation testing is an experimental method aiming to establish discrimination on the spot, with an aim to 132 131 Finally, in 2016, situation testing on access to health services for services health to access on testing situation 2016, Finally,in Our researchersOur spoke to Stefan, whose experience sympis RegularAnnual Reportfor 2014 SituationTesting 130 The 2015 situation testing of cos of testing situation 2015 The , visited 7 November 2018, available at: available 2018, November 7 visited , , 2015, p. 81, available at: available 81, p. 2015, , 128 ofdiscrim 129 The ------equality in practice equality cian and the nurse, who had been present to that event, write a statement about the incident. Stefan wrote about the incident and his testimony was published in newspapers. Since the information about his diagnoses became public, the Medical Center Administration offered to “lock” Ste- fan’s medical card, meaning only very few people would have access to it. Stefan accepted this proposal and since then, his card has been locked in the Health Center Administration.

133 background and context

In summary, this short and select analysis provides an insight into the fact that discrimination, in a variety of forms, persists in Serbia, despite the existence of a legal framework of protection. Accordingly, this study’s attempt to answer the Serbiaquestion must “Why be isfound. Serbia’s legal and policy framework on equality failing to provide protection in practice?”, is urgent as a solution to the ongoing inequality in

133 Da se zna! (It should be known!), Case of S., Case Study Research Report to Equal Rights Trust, 2018. 25 26 EQUAL RIGHTS TRUST 1 ties. verySerbiaa has recordgood rightshuman UN treamajor the in participation of 2.1.1 derogations. equality,relatedtotreaties regional reservations, and and declarationswithout international all almost ratified or to acceded has Serbia 1990s, late the Since 2.1 Serbia’s legal framework onequality. initiatives. One reason for this continued phenomenon may bethecomplexity of educational and training despite duty-bearers, and rights-holders both of laws of the study, we highlight persistently low levels of awareness of Serbia’s equality ThreePart In laws.overlap the betweenof degree significant a and crimination dis governing laws multiple are There laws. equality Serbia’s of enforcement and non-discrimination may, however, impede the effective implementation and nificant omissions. The multiplicity of measures to protect the rights to equality sig than rather rights, these protect to measures of abundance an by acterised In general, Serbia’s legal framework on equality and non-discrimination is char reasonable accommodationisnotprohibited asaform ofdiscrimination. importantly,law,exceptions.Forof regionaland example, some denial with the vided is largely consistentinternationalwith practicebest internationaland and pro protection legal The laws. other of number large a and laws, crimination anti-dis law,specific anti-discrimination comprehensive a Constitution, the in non-discrimination and equality to rights the for protection provides It rights. rightsregionaltreatiesinternational and human relevantmajor all fied tothese rati has Serbia non-discrimination. and equality to rights the protect to work frame policy and legal strong a established has Serbia decades, two last the In international Serbia’s with human rights obligations andinternational bestpractice onequality. complies it which to extent the assess to equality to related framework policy and legal Serbia’s analyses study the of part This 2. tryID=154&Lang=EN availableat: 2018, tember See: Office of the High Commissioner for Human Rights, “Ratification Status for Serbia”, visited 27 Sep Serbia”,27 for visited Status “Ratification Rights, Human for Commissioner High the of Office See: 1 It has ratified eight of the nine core UN human rights treaties: the Interna the treaties: rights human UN core nine the of eight ratified has It RELATED TO EQUALITY Major United Treaties Nations Related to Equality International Regional and Law THE LEGAL ANDPOLICY FRAMEWORK . http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?Coun ------equality in practice equality tional Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or ConventionPunishment for (CAT); the Protection the Convention of All onPersons the Rights from ofEnforced the Child Disappearances. (CRC); and the Con- vention on the Rights of Persons with Disabilities (CRPD); and the International framework relatedthe legal and policy to equality Serbia also has a good record of allowing for individual complaints to be made to the relevant treaty bodies. It permits individual complaints to be made with

Protocolrespect toto sixthe ofICECSR the core and UNthe Third human Optional rights treaties,Protocol namely:to the CRC. the ICCPR; the ICERD; the CEDAW; the CAT and the CRPD. The two exceptions are the Optional

Instrument Signed Ratified / Acceded

ICCPR

(1966) 12 March 2001 (acceded)

Optional Protocol I to the ICCPR (1976) (allowing 6 September 2001 individual complaints)

Optional Protocol II to the ICCPR (1989) (abolition of 6 September 2001 theICESCR death penalty) (acceded)

(1966) 12 March 2001 (acceded)

Optional Protocol to the ICESCR (2008) No No ICERD

(1965) 12 March 2001 (acceded)

Declaration under Article 14 of the ICERD (allowing 12 March 2001 individualCEDAW complaints)

(1979) 12 March 2001

Optional Protocol to CEDAW (1999) 31 July 2003 (allowingCAT individual complaints)

(1984) 12 March 2001 (acceded)

Declaration under Article 22 of the CAT (allowing 12 March 2001 individual complaints)

Optional Protocol to the CAT (2002) 25 September 26 September 2006 2003

27 28 EQUAL RIGHTS TRUST 3 2 been ontime,andatthetimeofpublication,noreports remain outstanding. treaties it has ratified. While some reports have been submitted late, many have Serbiagood recordhas a its reportingwith ofcompliance obligations un such, couldnotbeimplemented “atthistime”. as and, resources” financial significant for call would Convention this of tation implemen “the that indicated government the Council, Rights Human UN the protection.”international of need in were non-citizens 8,000 to 7,000 around “that emphasised and timely” be “would Convention the ratifying that considered Serbia in team country UN Periodic Review, the UN High Commissioner for Human Rights reported that the regardingSerbia’sCouncil UniversalthirdRights Human UN the toreport its In equality.to related obligations legal international Serbia’s in gap notable most the arguably is (1990) Families Their of Members Workersand Migrant All of The failure to ratify theInternationalConvention ontheProtection oftheRights Families (1990) Rights ofAllMigrant Workers andMembersofTheir International Convention ontheProtection ofthe Persons from Enforced Disappearances (2006) International Convention for theProtection ofAll individual complaints) Optional Protocol to theCRPD(2006)(allowing CRPD tive procedure) Optional Protocol IIIto theCRC (2011)(communica raphy) (sale ofchildren, childprostitution andchildpornog Optional Protocol IIto theCRC (2000) of children inarmedconflict) Optional Protocol Ito theCRC (2000)(involvement CRC Instrument SRB/1, 13November 2017,Para 23. ance withparagraph theof 5 annex to HumanRightsCouncil resolution 16/21* Para 2. missioner for HumanRights:Compilation on Serbia United Nations Human Rights Council, Universal Periodic Review,Periodic Universal Council, Rights Human Nations United United Nations Human Rights Council, Universal Periodic Review, (1989) (2006) 2 However, to submittedReport Serbia’s National in , UN Doc. A/HRC/WG.6/29/SRB/2, 10 November 2017, - - 3 11 November 17 December 28 February 6 February 8 October 8 October Signed 2007 2012 2001 2001 2004 2007 Report of the Office of the UN High Com National report submitted inaccord , UN Doc. A/HRC/WG.6/29/ Ratified /Acceded 10 October 2002 31 January2003 12 March 2001 18 May 2011 31 July 2009 31 July 2009 (acceded) No No der the - - - 2.1.2 Other Treaties Related to Equality in practice equality

Serbia also has a very good record in relation to ratification of other international treaties which are relevant to the rights to equality and non-discrimination. In relation to the rights of refugees and stateless persons, Serbia has ratified the Convention Relating to the Status of Refugees (1951). In the field of education, Serbia has ratified the United Nations Educational, Scientific and framework relatedthe legal and policy to equality Cultural Organization Convention against Discrimination in Education (1960) (UNESCO Convention). In the field of labour standards, Serbia has ratified all eight of the fundamental International Labour Organization (ILO) Conventions including the Equal Remuneration Convention4 and the Discrimination (Employ- mentInstrument and Occupation) Convention. Signed Ratified / Acceded

Convention Relating to the Status of Refugees (1951) 12 March 2001 Convention Relating to the Status of Stateless Persons (succeeded)

12 March 2001 (1954) (succeeded)

Convention on the Reduction of Statelessness (1961) 7 December 2011 (acceded)

Supplementary Convention on the Abolition of Slavery, 12 March 2001 the Slave Trade, and Institutions and Practices Similar (succeeded) 12 December to Slavery (1956) 2000 UN Convention against Transnational Organized Crime 6 September 2001 (2000) 12 December 2000 Protocol to Prevent, Suppress and Punish Trafficking in 6 September 2001 Persons,Rome Statute Especially on the Women International and Children Criminal (2000) Court 19 December 2000 6 September 2001 (2002) 11 September 2001

UNESCO Convention Against Discrimination in Educa- tion (1960) (acceded)

Forced Labour Convention (1930) (ILO Convention 24 November 2000 No. 29)

Equal Remuneration Convention (1951) (ILO Conven- 24 November 2000 tion No. 100)

Discrimination (Employment and Occupation) Conven- 24 November 2000 tion (1958) (ILO Convention No. 111)

Worst Forms of Child Labour Convention (1999) 10 July 2003 (ILO Convention No. 182)

29 4 International Labour Organization (ILO), “Ratifications for Serbia”, visited 27 September 2018, available at: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ ID:102839. 30 EQUAL RIGHTS TRUST 7 6 5 domestic judgmentsto beoverturned pursuantto thedecisionofECtHR. permitting by ECtHR the of judgments enforcementof the providefor Serbia in must budget. state’s (ECtHR) the fromRights come Human of Court European the of decision a in state the ECHR, domestic lawsthe in Serbia provide that paymentto of any awardrelation made against In non-discrimination. to right ECHR free-standing the a to provides 12 which No. Protocol and (ECHR) Rights Human on Convention pean treaties,European major the of one but all to acceded or ratified has It non-discrimination. and equality to rights the to Serbiastronghas a record relation in to Europeantreaties which are relevant 2.1.3 Women andDomesticViolence(2011) Convention onPreventing andCombatingViolenceagainst (2005) Convention onAction against Trafficking inHumanBeings European Convention onNationality(1997) Minorities (1995) Framework Convention for theProtection ofNational (1992) European Charter for Regional andMinorityLanguages Inhuman orDegrading Treatment orPunishment(1987) European Convention for thePrevention ofTorture and European SocialCharter (revised) (1996) Protocol No.12to theECHR(2000) ECHR Instrument Decision oftheCC and55/2014,Article426, Para 11. “Official Gazette oftheRepublic ofSerbia”, Nos.72/2011,49/2013–Decision oftheCC, 74/2013– 121/2012, 32/2013, 45/2013and55/2014,Article 485,Para 1,point 3;Law onCivil Procedure, Para 5. 13, Serbia”,Article of 55/2014, Republic No. the of Gazette “Official Office, Attorney’s Public the on Law conventions/full-list/-/conventions/treaty/country/SAM?p_auth=ZSU2wCk9. “Treaty listfor Serbia”, visited 27September 2018,available at: Law onCriminalProcedure, “OfficialGazette oftheRepublic ofSerbia”, Nos.72/2011,101/2011, For afulllistofCouncilEurope treaties thatSerbia hassignedandratified, see:CouncilofEurope, Regional HumanRights Treaties (1950) 6 Further, both criminal and civil procedure laws procedure civil and criminal Further,both 5 and importantly,Euroand the ratified has https://www.coe.int/en/web/ Succession 22 March 22 March 3 March 16 May Signed 4 April 3 April 3 April 2012 2005 2001 2005 2004 2005 2003 2003 No Ratified /Acceded 14 September 2009 21 November 2013 15 February 2006 14 April2009 3 March 2004 3 March 2004 3 March 2004 11 May 2001 No 7 - 2.1.4 European Union Legislation Related to Equality in practice equality

Serbia is not yet a member having ofbeen the granted EU and, candidate as such, statusEU law in does 2012. not In applySeptem in Serbia. However, since8 2014, Serbia has participated in formal accession nego- thetiations EU and with committed the EU, to gradually harmonizing domestic legislation with the- acquisber 2013, communautaire the government acquis signed– the a Stabilization body of common and Accessionrights and Agreement obligations with that 9 is binding on all EU member states. framework relatedthe legal and policy to equality ( ) acquis

In 2016, Serbia commenced negotiations with the EU on Chapter 23 of the which outlines10 the EU’s laws and policies regarding the judiciary and fundamental rights. Serbia has adopted an Action Plan for Chapter 23 which provides, in part, that:The Republic of Serbia plans to achieve full alignment of the anti-discrimination laws with the EU acquis (…)Positive progress has been made in improving the situation of the LGBTI community(…) In the forthcoming period, the good practice of raising awareness about the prohibition and prevention of discrimination is planned to continue, which will be achieved through a series of educational roundtables, training of citizens and civil servants, and printing and distributing manuals for recognizing and responding to discrimination. The state plans to pay due attention to the promotion of the principle of gender equality, including mainstreaming gender in relevant policy areas, both at strategic and legislative level, as well as to strengthen capacity of the institutions and their mutual coordination.

In April 2018, the European Commission published its most recent report on Serbia’s progress towards accession-discrimination to the EU. With legislation respect is to broadly Serbia’s in legal line framework on the rights to equality and non-discrimination, the Europeanacquis is Commission reported11 that, “non with the European standards, although further alignment with the still needed.” This is consistent with a detailed report published in 2017 by the European Commission’s independent panel of legal experts which

8 For further information, see: European Commission, “European Neighbourhood Policy and Enlargement Negotiations: Serbia”, updated 6 December 2016, available at: https://ec.europa.eu/neighbourhood- 9 enlargement/countries/detailed-country-information/serbia_en.Law on ratifying the Stabilization and Accession Agreement between the European community and its

10 member states and Republic of Serbia, “Official Gazette of the Republic ofAction Serbia”, Plan: No. For 83/08. Chapter 23, available at: For the government’s Action Plan for Chapter 23, see: Republic of Serbia, 2015, https://www.mpravde.gov.rs/tekst/9849/finalna-verzija-akcionog-plana-za-pregovaranje-. poglavlja-23-koja-je-usaglasena-sa-poslednjim-preporukama-i-potvrdjena-od-strane-evropske-komisije- 11 -u-briselu-.php Serbia 2018 Report: Communication from the Commission to the European Parlia- ment, the Council, the European Economic and Social Committee and the Committee of the Regions European Commission, . , 2018, p. 26, available at: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20180417-serbia-report.pdf 31 32 EQUAL RIGHTS TRUST 16 15 14 13 12 norms or peremptory as known are these permitted; is norms such from derogation no law, such as the prohibition of torture, are considered to be so fundamental that ratherderiving than from awritten treaty. states, of behaviour and practice consistent the from time over deduced being ary international law as well as from treaty law, with customary international law Under international law, binding legal obligations on states derive from custom 2.1.5 The enforcement of Serbia’s equality laws is addressed in Part Three of the study. laws, asfollows: must Serbia that emphasised Commission improve theeffective enforcement European oftheexisting andimplementation equality the report, 2018 its In on non-discrimination. Directives EU the with framework legal Serbia’s of compliance the assessed

women, updating general recommendation No.19 tion against Women (CEDAW Committee), tion on the Law of Treaties, 1155 U.N.T.S. 331, 1969, Article 53; Committee on the Elimination of Discrimina Rights”,Human Hastings International andComparativeof Law Review Law the Compelling Cogens: “Jus B., L. Neylon, and Parker,K. 153; 17/1-T,Para 1998, of international law is“international custom, as evidence ofageneral practice accepted aslaw”. Ibid loads/4408-serbia-country-report-non-discrimination-2017-pdf-1-75-mb Non-discrimination: Serbia 2017 report, Country Rome Statute 2187U.N.T.S. oftheInternational CriminalCourt, 3,1998,Article38(b);oneofthesources See above, note 11,p.4. Non-discrimination, and Equality Gender in Experts Legal of NetworkEuropean Commission, European International Criminal Tribunal for the former Yugoslavia, former the for Tribunal Criminal International Customary International Law ., p.23. tion, prosecution andconvictions for hate-motivated crimes. and otherHIV/AIDS vulnerable groups: actively pursue investiga and intersex (LGBTI) persons,personswith disabilities, people with facingincludingdiscrimination, lesbian, gay, bisexual, transgender particular: (…)steptoactions up protectthe theof rights groups Serbia needsto address theshortcomings outlined below andin needs to beadopted. and otherAIDS socially vulnerable groups). law A gender equality (Roma, LGBTI persons,personswith disabilities, persons with HIV/ situation ofpersonsbelonging to the most discriminated groups minorities. (…) Furthersustained efforts are neededto improve the needstocountry beensured,including as regards protectionof mentalis inplace. rights Itsconsistentimplementation across the The legalframework andinstitutional for the respect funda of jus cogens. 16 The prohibition of racialdiscrimination is widely accepted 12 13 General recommendationgender-basedon 35 No. violence against , UNDoc.CEDAW/C/GC/35, 26July 2017,Para 25. , 2017, available at: available 2017, , , Vol. 12, 1988–1989, p. 417; see also: Vienna Conven Vienna also: see 417; p. 1988–1989, Vol.12, , 15 Certainprinciplesofinternational Prosecutor vAnto Furundzija https://www.equalitylaw.eu/down . 14 , Case No. IT-95- No. Case , ------to be a peremptory norm of customary international law. in practice equality 17 In addition, it can reachingbe said that the the status prohibition of a peremptory of discrimination norm. on other grounds, such as gender and religion, may now be part of customary18 international law, although not yet It has been posited, including19 by the thisInter-American remains subject Court to of debate. Human20 Rights (IACtHR), that the principle of non-discrimination is a peremptory norm of customary international law; however,

2.1.6 Status of International Obligations in National Law framework relatedthe legal and policy to equality

The Constitution governs the status of international law in national law. Arti whereby international obligations are directly applicable in national law.21- cles 16, 18 and 194 of the Constitution indicate that Serbia is a monist state

However, Articles 16 and 194 appear to place a caveat on the direct application of international obligations by providing that ratified international treaties tutionalmust be Court“in accordance in which with”it has thedetermined Constitution. that Despitean international this caveat, obligation the Equal is inconsistentRights Trust’s with legal the consultants Constitution. are not aware of any decisions of the Consti-

In a number of decisions,22 Serbian courts have directly applied provisions of the ECHR and Protocol 12 of the ECHR in order to protect the rights to equality and non-discrimination. Of particular significance is a 2017 decision of the Appel- late Court in Nis which provided that, in circumstances in which Serbia’s comprehensive anti-discrimination legislation did not apply (due to the date of its entry into force), it was correct to directly apply the protection of the right to

International Human Rights Law: Cases, Materials, Commentary

17 De Schutter, O., , Cambridge University FinnishPress, 2010, Yearbook pp. 64–68, of International and the materials Law referred to therein; Pellett, A.,International “Comments inLaw Response to Chris- tine Chinkin and in Defense of Jus Cogens as the Best Bastion against the Excesses of Fragmentation”, , Vol. 17, 2006,South-West p. 85; Shaw, Africa M.N., Cases (Ethiopia v South, Cambridge Africa; Liberia Uni- vversity South Press,Africa) 2008, p. 287, who refers to it as part of customary international law, with no reference to it being a peremptory norm; Tanaka, J. (in dissent), Ibid. , InternationalIbid. Court of Justice, 1996, pp. 293, 299–300. Human Rights and Refugees, Internally Displaced Persons and Migrant Workers: 18 Essays, Shaw, in Memory p. 287; of Joan, Pellett, Fitzpatrick p. 85; and Cassel, Arthur D., Helton“Equal Labour Rights for Undocumented Migrant Work- ers”, in Bayefsky, A. (ed.), 19 , Juridical, Martius Condition Nijhoff andPublishers, Rights of2006, Undocumented pp. 511–512. Mi - grants Advisory Opinion, Inter-AmericanInternational Court of Human Human RightsRights (IACtHR)and Humanitarian Law: Cases, Treaties and Analysis , OC-18/03, No. 18, 17 September 2003, p. 23; see also, by way of example: Mar- tin, F. F. et al, , Cambridge 20 University Press, 2006, pp. 34–35. The European Journal of International Law, See: Bianchi, A., “Human Rights and the Magic of Jus Cogens”, 21 Vol. 19, 2008, p. 506; see above, note 18, Cassel, pp. 511–512; see above, note 17, Pellett, p. 85. Article 16 provides that “[g]enerally accepted rules of international law and ratified international treaties shall be an integral part of the legal system in the Republic of Serbia and applied directly”. Article 18 provides that “[t]he Constitution shall guarantee, and as such, directly implement human and minority rights guaranteed by the generally accepted rules of international law, ratified international treaties and laws”. Article 194 provides that “[r]atified international treaties and generally accepted rules of the internation- 22 al law shall be part of the legal system of the Republic of Serbia”. See, for example: decision of the Appellate Court in Belgrade, GŽ 3216/13, 10 May 2013, in which the Court directly applied Article 14 ECHR; decision of the Appellate Court in Novi Sad, GŽ 67/12, 28 March 2012, in which the Court directly applied Article 1 of Protocol 12 ECHR. 33 34 EQUAL RIGHTS TRUST provide protection for not the more expansive conception does of the right to equality,however,it as law; the of protection equal namely: equality,and law; to the right before equality the of elements core the of two protects 21 Article equality asfollows: provision constitutional to right protectsthe It non-discrimination. and equality significant to rights protectingthe most the is Constitution the of 21 Article explicitly prohibits discrimination. of Serbia and Montenegro (2003). It is the first constitution to govern Serbia that Charter Constitutional the replacingMontenegro, and Serbia of Union State the The Constitution currently in force was adopted in 2006, after the dissolution of 2.2.1 the content anddesignofsuchlaw underinternational law andbestpractice. regardingobligations its legislativewith provisionsand Serbia’sconstitutional of and discrimination in different areas of life. In inequality this Part, address we whichanalyse the legislation compliance of pieces other of range a and respectively; legislation which seekto address inequalityonthebasisofgenderanddisability of pieces further two legislation; anti-discrimination comprehensive a stitution; Con the in protection includes: This non-discrimination. and equality to rights the protect toframework legal national imperfect, extensive,albeit an has Serbia 2.2 Serbia hasratified). (which ECHR the of 14 Article and Constitution the under non-discrimination 23

Decision oftheAppellate CourtinNiš,GŽ 1022/17,24February 2017. The Constitution National Law the concrete case, the Law onthe Prohibition ofDiscrimination, retroactiveimplementation prohibited.is laws of Therefore, in According to the provision ofArticle 197ofthe Constitution, crimination. shall haveEveryone the to right equallegal protection, without dis All are equalbefore the Constitution andlaw. mental Freedoms. pean Convention for the Protection ofHumanRights andFunda sion ofArticle 21ofthe Constitution andArticle 14ofthe Euro instance court acted correctly when itapplieddirectly the provi first the mind, in that Having application. retroactive on visions on the Prohibition ofDiscrimination]itself does notcontain pro the Government Conclusion were adopted in2008,andthe [Law adopted in2009,cannot beapplied,because the Agreement and 23 TheCourtheldasfollows: ------equality in practice equality required by international best24 practice, exemplified by the Declaration of Princi- ples of Equality (Declaration).

Article 21All providesdirect or theindirect following discrimination guarantee ofbased the righton any to non-discrimination:grounds, particularly on race, sex, national origin, social origin, birth, religion, political or other opinion, property status, culture, language, age,

mental or physical disability shall be prohibited. framework relatedthe legal and policy to equality

Article 21 expressly prohibits two of the four forms of discrimination required to be protected under international law namely direct dis 25 26 and best practice, - doescrimination it prohibit and otherindirect forms discrimination. of discrimination However, recognised it does notunder prohibit international harassment or denial of reasonable accommodation as forms of discrimination. Nor crimination by perception and multiple discrimination. human rights law and best practice, such as discrimination27 by association, dis- However, with the exception of denial of reasonable accommodation, these are protected in Ser- bia’s specific anti-discrimination laws. nationalThe approach best practice to the grounds and the of international discrimination treaties in Article to which 21, through Serbia theis party. use of29 Whilean open-ended Article 21 listprohibits of 28 protected discrimination characteristics, with respect is broadly to a large consistent number with of express inter-

grounds of discrimination, it does not, however, include several grounds that are30 well-recognised under international human rights law, namely: sexual orientation;

Declaration of Principles on Equality

24 , Equal Rights Trust, London, 2008, Principle 1, available at: http://www.equalrightstrust.org/content/declaration-principles-equality.General Comment No. 20: Non-discrimination in economic, social and cultural rights 25 Committee on Economic, Social and Cultural Rights (CESCR),General Comment No. 6 on equality and non-discrimination , UN Doc. E/C.12/GC/20, 2009, Paras 7, 10 and 28; Committee on the Rights of Persons with Disabilities (CRPD Committee), , UN Doc. CRPD/C/GC/6, 2018, Para 18. 26 See above, note 24, Principles 5 and 13. the discussion with respect to the Law on the Prevention of Discrimination under Part 2.2.2 below. 27 For references to the international law obligations applicable to these forms of discrimination, please see

28 See above, note 24, Principle 5, which provides that, in addition to being prohibited on the explicitly listed characteristics, “[d]iscrimination based on any other ground must be prohibited where such discrimination: (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to 29 discrimination on the prohibited grounds stated above.” See, for example: International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 1966 (ICCPR), Articles 2 and 26; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 1966 (ICESCR), Article 2(2); Convention for the Protection of Human Rights and Fundamental Freedoms, C.E.T.S. No. 005, 1950 (ECHR), Article 14; which refer Youngto “other v Australia status”. 30 See, for example:Salgueiro Human da Silva Rights Mouta Committee v Portugal (HRC), , Communication No. 941/2000, SmithUN Doc. and CCPR/C/78/D/941/2000, Grady v the United Kingdom 2003; see above, note 25, Para 32; European Court of Human Rights (ECtHR),Karner v Austria , Application No. 33290/96,Bączkowski 21 December and Others 1999; v Poland ECtHR, , ApplicationE.B. v Nos.France 33985/96 and 33986/96, 27 September 1999; ECtHR, , Application No. 40016/98, 24 July 2003; ECtHR, , Application No. 1543/06, 3 May 2007; ECtHR, , Application No. 43546/02, 22 January 2008. 35 36 EQUAL RIGHTS TRUST 39 38 37 36 35 34 33 32 31 gen the to exceptions non-citizens, to extended be citizens to guaranteed dom While international humanrights law does not require that sions; right to freedom of assembly; only:tocitizens righttovote; the respectizens with to certainrights protected.guarantees It thefollowingrights non-cit and citizens between distinctions of number a makes Constitution The apply withrespect to theprotection oftheright to freedom ofexpression. civilexistthat penalties criminal and Serbianin law the considerationsand that rangeof the detail in discuss we 2.2.3, and Parts2.2.2 In ICCPR. 20(2) Article of language the violence.”mirrorsclosely or This hostility discrimination, inciting nation of information (…) to prevent advocacy of racial, ethnic or religious hatred Article 50 of the Constitution confers a power on a court to “prevent the dissemi must lead to one of the listed results, namely discrimination, hostility or violence.” nant”, ‘advocacy of hatred’ that do not amount to incitement under article 20 of the Cove cial Rapporteur onFreedom ofExpression hascautionedagainst “prohibitions on Spe UN The “inequality”. inciting prohibits provision the that albeit violence, or as it does not expressly specify that the hatred must incite discrimination, hostility the Constitution is arguably broader in scope than required by Article 20(2) ICCPR, violence.”or hostility incitementtodiscrimination, of 49 prohibitionArticle The in prohibition of “[a]ny advocacy of national, racial or religious hatred that constitutes ICCPRwhichrequirestowell20(2) comply as ICCPR,as Article 19 with the Article under expression of freedom to right the guarantee to required is Serbia ICCPR, prohibitedpunishable”.be and hatredshall or inequality other orthe to party a As Article 49 of the Constitution provides that “[a]ny inciting of racial, ethnic, religious maternity, identity; gender 41 40

Ibid. Ibid. Ibid. Ibid. freedom ofopinionandexpression freedom ofopinionandexpression 1979 34/180, (CEDAW),Res. Article11(2). G.A. Women, against Discrimination of Forms All of Elimination the on Convention Ibid. Ibid. See above, note 25,CESCR,Para 32. Constitution oftheRepublic ofSerbia 2006,Article52. Assembly,General UN Assembly,General UN 35 40 , Article71. , Article69. , Article54. , Article53. , Para 31. , Para 33. and indicatedfor that, the purposes of Article 2(2) ICCPR, “such incitement andtheright to higher education. 34 amongothers. 31 elh status; health Reportthe of Special Rapporteuron the promotion andprotectionof the toright Reportthe of Special Rapporteuron the promotion andprotectionof the toright , UNDoc.A/67/357,2012,Para 43. , UNDoc.A/71/373,2016,Para 25. 39 theright to socialprotection which includes pen 32 aia ad aiy status; family and marital 37 the right to participate in public affairs;public righttoparticipatein the 41 33 and pregnancy and andpregnancy and all rights andfree 38 the 36 ------equality in practice equality eral principle of equality between citizens and non-citizens are extremely limited. For example, under the ICCPR, certain political rights contained within Article 25 (such as the right to vote and to participate in public affairs) are guaranteed to citizens only, and the right to liberty of movement and to choose one’s ingresidence the right under to freedom Article of12(1) assembly is guaranteed to citizens. only for persons “lawfully within the territory of a State”; however, there is no basis under the ICCPR for restrict-

A number of provisions in the Constitution provide powers on the state to take framework relatedthe legal and policy to equality measures to advance the position of groups who have experienced discrimina tion and disadvantage. Article 21 of the Constitution provides that measures may be taken to “achieve full equality of individuals or groups of individuals- in a substantially unequal position compared to other citizens”, and that such measures “shall not be deemed discrimination”. While the provision for meas- thanures anto achieveexception full to equality the prohibition is welcomed, on discrimination. international best practice provides that such measures are an essential component of the right to equality, rather

PrincipleTo 3 be of effective,the Declaration the right provides to equality as follows: requires positive action. Pos- itive action, which includes a range of legislative, administrative and policy measures to overcome past disadvantage and to accelerate progress towards equality of particular groups, is a necessary element within the right to equality.

and the Committee42 on the Elimination of Discrimination The Human Rights Committee43 (HRC), the Committee on Economic, Socialduty and on Cultural Rights (CESCR) 44 crimination.Against Women The (CEDAW CEDAW CommitteeCommittee) has have provided similarly the affirmedfollowing that explanation: it is a states to take positive action in order to realise the rights to equality and non-dis- [T]he application of temporary special measures in accordance with the Convention is one of the means to realize de facto or sub-

General Comment No. 18: Non-discrimination

42 HRC, , 1989, Para 10, provides “the principle of equalityGeneral Commentsometimes No. requires 28: Equality States ofparties rights to between take affirmative men and actionwomen, in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant”; see also: HRC, UN Doc. CCPR/C/21/Rev.1/Add.10, 2000, Para 3, which establishes that states “must not only adopt measures of protection, but also positive measures in all areas so as to achieve the effective and equal empowerment of women.” 43 See above, note 25, CESCR, Para 9, which provides that “[i]n order to eliminate substantive discrimination, States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditionsGeneral that perpetuate recommendation discrimination.” No. 25, on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on temporary special measures 44 providesCEDAW Committee, “the application of temporary special measures in accordance with the Convention is one of the , 2004, Para 14, General recommendation No. 28 on the coremeans obligations to realize of de States facto partiesor substantive under article equality 2 of forthe women, Convention rather on thethan Elimination an exception of Allto Formsthe norms of Dis of- criminationnon-discrimination against Womenand equality”; see also: CEDAW Committee,

, UN Doc. CEDAW/C/GC/28, 2010, Paras 9, 18, 20, 24 and 37(d). 37 38 EQUAL RIGHTS TRUST 48 47 46 45 as sexual andgenderminorities. such disadvantage,historic experienced also havemay who groups other of ity Constitution does not provide the express power Further, to take measures to advance theright to equal workplace. the in women for measures protection” concerned. This ishistorically often thepracticalpurpose andeffect of“special atic andcanjustifypaternalistic measures discriminatethat against thegroups problem protection”is “special of language the that noted groups.”is ticular It par of equality towards progress accelerate (…) and disadvantage past come in the areas of life in question, and whether the measures are designed to “over Declaration.However,groupsthe the of of needs particular the on depends this 7 Principle of definition the within action”“positive constitute would that ures meas take to state the may,provisionspermit practice,constitutional in These inat[e] extremely unfavourable living conditionswhich particularly affect them.” nation”). However, it expressly states that the purpose of such measures is to “elim rather than a component, of the right to equality (“shall not be discrimination, considered discrimi on prohibition the to exception an as measures action positive of conceives 76 Article 21, majority.”Article the Like to belong who citizens and ity life for thepurpose of achieving fullequalityamongmembers ofanationalminor regulations and provisional measures (…) in economic, social, cultural and political “[s]pecific take to power a for provides Constitution the of 76 Article addition, In measures for the“specialprotection” ofcertaingroups: The following provisions in theConstitution confer power on thestate to take 50 49

Ibid. Ibid. Ibid. Ibid. Ibid. Constitution oftheRepublic ofSerbia 2006,Article40. , Article76. , Article69,Para 4. , Article66. , Article68,Para 2. of non-discriminationandequality. forstantive women, rather equality than an exception to thenorms sions. “special protection” in relation to “social protection” which includes pen receive shall war of victims and veterans war disabilities, with Persons without law”, further detailsprovided. the with accordance in Serbia of Republic the in tection pro special enjoy “shall child any and parents single mothers, Families, to free healthcare. entitled are personselderly and age, of sevenyears under children with parents single leave, maternity on mothers women, pregnant Children, law.” “special with provided protection be work at workand special conditions inaccordancethe with shall persons disabled and young Women, 46 49 47 48 45 50 ------equality in practice equality

In conclusion, the Constitution establishes a relatively strong basis for specific anti-discrimination laws to be adopted to elaborate on the content of the rights to equality and non-discrimination although its “special protection” provisions 2.2.2and its Specific approach Anti-Discrimination to “incitement of hatred” Laws need particular attention.

Serbia is required to provide effective protection from discrimination in its legal the legal and policy framework relatedthe legal and policy to equality As system, including by enacting specific and comprehensive anti-discrimination51 legislation, pursuant to the obligations under the treaties that it has ratified. the Declaration provides, “[t]he realisation of the right to equality requires the adoption of equality laws and policies that are comprehensive and sufficiently detailed and specific to encompass52 the different forms and manifestations of discrimination and disadvantage.” It has also adopted two detailed laws pertaining In 2009, Serbia adopted a comprehensive53 equality law, the Law on the Prohibi- tion of Discrimination (LPD). to the rightsThe Law to equality on the Prevention and non-discrimination of Discrimination of specific against groups: Persons with Disa

54 - bilities (LPDPD), adopted adopted in in2006; 2009. and The Law on Equality55 between the Sexes, also known as the Law on Gen- der Equality (LGE),

At the time of publication, the National Assembly is also considering a new Law proposedon Gender changes. Equality which would replace the existing LGE and include additional protection from discrimination56 on the ground of gender identity, among other tions under international law and best practice. In this Part, we analyse the compliance of the existing laws with Serbia’s obliga-

General Comment No. 18

51 ICCPR, Article 26 (see above, note 43, HRC, , Para 12); ICESCR, Article 2(2) (see above, note 25, CESCR, Para 37); CEDAW, Article 2(b); International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), 1965 (ICERD), Article 2(1)(d); Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, 2006 (CRPD), Article 5(2). 52 See above, note 24, Principles 3 and 15. 53 Law on the Prohibition on Discrimination (LPD), “Official Gazette of the Republic of Serbia”, No. 22/2009. 54 Law on the Prevention Discrimination against Persons with Disabilities (LPDPD), “Official Gazette of the Republic of Serbia”, Nos. 33/2006 and 13/2016. 55 Law on Equality Between the Sexes, also known as the Law on Gender Equality (LGE), “Official Gazette of the Republic of Serbia”, No. 104/2009; We use the terminology of the Lawhttps://www.ilo.org/dyn/natlex/ on Gender Equality as this is the title of the law commonly referred to in English translations; see, for example: ILO, “Serbia (3): Equality of opportunity and treatment”, visited 28 September 2018, available at: natlex4.detail?p_lang=en&p_isn=102853&p_count=3&p_classification=05.Serbian Monitor able at: 56 See: Bjelotomic, S., “New GenderB92 Equality Law in Serbia in autumn”,https://www.b92.net/eng/news/politics. , 25 August 2017, avail- https://www.serbianmonitor.com/en/new-gender-equality-law-serbia-autumn/; B92, “Serbia set to get gender equality law”, , 24 August 2017, available at: http://www.parla php?yyyy=2017&mm=08&dd=24&nav_id=102149; National Assembly of the Republic of Serbia,. “Public Debate on Gender Equality Draft Law at National Assembly”, 26 June 2018, available at: - ment.gov.rs/Public_Debate_on_Gender_Equality_Draft_Law_at_National_Assembly.34380.537.html 39 40 EQUAL RIGHTS TRUST respect oftheobligations imposedonemployers alone). in (albeit comply to failure for imposed fines and initiated be may proceedings misdemeanour that provides alone LGE the but measures, action positive take practice.best tional past disadvantage and give effect to the right to equality, as required by interna Serbia) with respect to the obligation to take positive action measures to address in anylaw of laws(and threeadvanced the Finally,most of the farby is LGE the for enforcement ofthelaws inPart Three ofthestudy. provides forgreatest the scopeofsuchproceedings. We discuss the mechanisms scope of activities in which misdemeanour proceedings apply differs. The LPD however,fine; a impose may court the the which in discrimination of cases tain threeAll tion. laws provide for misdemeanour proceedings toinitiated be incer discrimina of allegations for mechanism complaint non-judicial a for provide damage declarationand a non-pecuniary discrimination has occurred.that TheLPDistheonly lawto and pecuniary for compensation include and similar, areproceedings such availableremediesunder the and discrimination, rienced provide broada laws incivil causeofaction proceedings for persons who havethree expe all remedies, available and laws the of enforcement the Regarding care andemployment. health education, as such activity of areas in discrimination” of cases “special specific then law.and discrimination generalprohibitionson contains law Each by regulated activities of range wide a to and bearers duty private-sector and The three laws are similar regarding their scope toof application both public under international humanrights law.required protection the of short fall these and accommodation, reasonable of tion by perception. Only theLPDPD contains two narrowprohibitions ondenial harassment as a form of discrimination, multiple discrimination and discrimina forms of discrimination. The LPD is the only law to comprehensively prohibit threeAll laws prohibit directindirectand discriminationvictimisation as and law.rights human international under required as discrimination, of form a as accommodation reasonable of denial prohibit not does however,prohibited;it comprehensive ofthethree lawsrespect with to theforms of discrimination In inconsistent approaches to enforcing thelaw, asidentifiedinPart Three. or the specific anti-discrimination law. This has led to a great deal of confusion and der or disability, litigants may choose to initiate proceedings under either the LPD gen of grounds the on discrimination of instances in Thus, LGE). the and LPDPD (the laws anti-discrimination specific other two the and LPD) (the law equality Serbian law doesnotspecifythelegal relationship between thecomprehensive 2.2.2.1 57

Table 2A See above, note 24,Principle1. Interaction the Specific Between Anti-Discrimination Laws , we compare key aspects of the three laws. The LPD is the most the is LPD The laws. three the of aspects key compare we , 57 Both the LGE and the LPDPD impose certain obligations to ------Table 2A in practice equality

ComparisonLPD of the three primaryLGE anti-discriminationLPDPD laws Protection of the right to equality Article 2 to equality Guarantee of the right Article 4 Not specifically defined“equal rights but and “principle” of framework relatedthe legal and policy to equality to in Article 2 obligations” referred Power to take positive action Article 14 Article 7 Article 8 Duty to take positive Article 12 Part Four action – (data collection and publication)

Article 13, 35 (plan of action and annual report)

Articles 14, 19, 21, 32, 37, 38 (representation)

Articles 22, 33, 34, 39, 41

(specific sectors) proceedings if Misdemeanourpositive action not – Article 54 – taken (with respect to employers’ duties Protection of the right to non-discrimination under Articles 13,19) Protected grounds of discrimination Open-ended list with Gender Disability (Article 3) 23 grounds expressly58 (ArtsFamily 4, and 10(2)) marital listed (Article 2) Sex (Arts 17, 10(1))

status (Arts 6, 26, 27) discrimination Definition of Articles 2(1), 4 Articles 2, 4 Article 3(2), Article 6

58 See above, note 54, Article 2, which provides: “on the grounds of race, skin colour, ancestors, citizenship, national affiliation or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, financial position, birth, genetic characteristics, health, disability, marital and family status, previous convictions, age, appearance, membership in political, trade union and other organisations and other real or presumed personal characteristics (hereinafter referred to as: personal characteristics)”. 41 59 60 42 EQUAL RIGHTS TRUST discrimination Indirect Direct discrimination Forms ofdiscriminationrequired by international humanrightslaw to beprohibited violence Discriminatory discrimination Multiple perception Discrimination by association Discrimination by discrimination Incitement to Victimisation accommodation Denial ofreasonable Harassment Articles 11,13 Article 13(5) Article 2(1) Article 2(1) Article 11 Article 9 – Article 12 Article 7 Article 6 LPD – – – Articles 4,8 – 10(6), 18) employment (Articles in thecontext of prohibited expressly of discrimination,but Not definedasaform Article 6 Article 5 LGE Article 29 – (Articles 11(3),15, of discrimination activities asaform large numberof prohibited ina “Harassment” is (Article 6(4)(2)). treatment to “humiliating” discrimination refers The definitionof Article 6 Article 6 LPDPD prohibited Not expressly – – Article 3(2) Articles 6(5),10 Article 6(4) (Article 22(4)) and employment (Article 13(5)(3)) to publicservices context ofaccess prohibited inthe (Article 6).Partially general definition discrimination in as aform of Not defined 17(4), 20,26,29) equality in practice equality LPD LGE LPDPD Scope of application

actors actors actors Duty-bearers State“Everyone and non-state shall be State and non-state State and non-state obligated to respect the principle of statement Gender equality must Noregarding express scope be “respected by all” equality, that is to (Article 2) Public authorities framework relatedthe legal and policy to equality say, the prohibition ofmust duty-bearers. guarantee of discrimination.” (Article 4). discrimination “Everyone” includes the right to non- state and non-state actors (Article 2(2)) (ArticlePart Three 4) outlines “special cases of

in a wide range of discrimination”activities without limiting the

scope to public- Areas of activity to Scope not expressly Scope not expressly sector duty-bearers which the prohibition on discrimination Gender equality must applies defined in “all fields of public definedPart Three outlines interpreted broadly and private sector” “special cases of Articleto include 4 has areas been of (Article 2) activity regulated by law. Part Three discrimination”sector activities in outlines “special cases private and public-

(see below) ofactivity discrimination” in specified areas of Areas of activity in which discrimination is specifically prohibited Procedures before Article 11 public authorities Article 15 – Article 12 associations Membership of – – Public facilities and spaces 59 60 Article 17 – Article 13

59 See above, note 54, Article 17, which provides, in part, that “[e]veryone shall have the right to equal access to objects in public use (objects where the head offices of public administration organs are located, objects used in the sphere of education, health care, social welfare, culture, sports, tourism, objects used for the purpose of environmental protection, protection against natural disasters and the like), as well as public spaces (parks, squares, streets, pedestrian crossingsthe and purpose other publicof this transportLaw, publicly routes used and facili the- tieslike), are: in accordancefacilities in withthe fields the law.” of education, health care, social protection, culture, sports, tourism or facili- 60 tiesSee usedabove, for note environmental 55, Article protection,13(3), which protection provides against that “[f]or natural disasters and the like”, and Article 13(4), which provides that “[f]or the purpose of this Law, public spaces are: parks, green areas, squares, streets, pedestrian crossings and other public roads and the like.” 43 44 EQUAL RIGHTS TRUST Pensions andsocial Healthcare violation oftheAct legal proceedings for Right to initiate civil complaint procedure Non-judicial Enforcement mechanisms Media Culture andsport relations Marital andfamily Transport life Participation inpublic Employment Education welfare treatment” discriminatory who hassuffered Article 41:“[a]nyone Article 35 – Article 17 – – – Article 16 Articles 17,19 Article 17 Articles 17,23 LPD Article 43:“[a]ny – Article 41 (positive action) Article 34 Articles 26,27 – action) relate to positive 36, 37,38,39(some Articles 32,33,35, Articles 11-22 Articles 30,31 Article 23 Articles 24,28 LGE of [a]certainsex” he/she isamember been violated because or freedoms have person whose rights

– Article 21 Article 18 Article 13 Article 17 LPDPD Articles 21and22. discrimination under experienced that personhas disabilities” where the personwith accompanying against” or“aperson been discriminated disabilities who has a personwith Article 42:“by – (positive action) Article 35 Article 9(2) (positive action) Article 37 Article 30 Article 27

equality in practice equality LPD LGE LPDPD Available in relation Available in relation Available in relation proceedings in which to discrimination in to discrimination in to discrimination in Misdemeanour certain activities: certain activities: certain activities: committed associations fines may be imposed by a “public employment administration education (Article 53) provision of public (Articleservices 46) employment (Article 54)

organ” (Article 50) media (Article 55) health care framework relatedthe legal and policy to equality provision of public (Articleservices 47) (Articleservices 51) and access to public facilitites some aspects of (Articleeducation 48) education (Article 52) harassment in healthcare (Articleeducation 49) (Article 54) public or private Available(Article in 60) relation (Articletransport 50) to discrimination on certain grounds: harassment in religion or belief (Articlethe context 51) of transport (Articlesexual orientation 53) aspects of legal gender (Article 55) (Article 52) affecting children (Article 56) services (Article 52a) (Article 57) agemembership (Article 58) or political belief, of political party non-membership

Remedies available under(Article civil proceedings 59) Compensation for pecuniary damage Article 43(4) Article 43(6) Article 43(4) pecuniary and non- Declaration that discrimination has occurred Article 43(2) Article 43(2) Article 43(3) Prohibition on conduct amounting to discrimination Article 43(1) Article 43(2)–(4) Article 43(1) Order to redress the consequences of discrimination Article 43(3) Article 43(5) Article 43(2) decision Publication of court’s Article 43(5) – –

45 46 EQUAL RIGHTS TRUST 61 The term “discrimination” isdefinedinArticle2asfollows: principle ofequality, thatisto say, theprohibition ondiscrimination.” the respect to obligated be “[e]veryoneshall that, provides LPD the of 4 Article of discriminationthatare referred to inArticle 13orPart Three ofthelaw. discrimination in Articles 6 to 12 of the LPD, as well as any of the specific instances ceedings, claimants usually allege violations of Articles 2, 4 pro and one legal of the civilforms of in that, indicated have consultants legal Trust’s Rights Equal The Part Three of theAct prohibits “specialcasesofdiscrimination”. discrimination”,and of forms “severe additional prohibit to on goes 13 Article discrimination. of forms different define separately 12 to 6 Articles and tion”; discrimina of “forms the lists 5 Article a discrimination; provides on prohibition 4 general Article “discrimination”; term the defines 2 Article crimination: non-dis to right the of protection the to approach complex a adopts LPD The equal statusandlegal protection regardless ofpersonalcharacteristics.”enjoy shall and equal be shall persons “[a]ll that provides LPD the of 4 Article Part Three of thestudy. imposed for contravention ofcertainprovisions. These are discussed in in detail be fine a mayorderthat court a which proceedingsin misdemeanour regimeof (Commissioner). EqualityProtection of the for Commissioner the with complaint a lodge to against” discriminated herself ment” to initiate civil proceedings, below.confers It a right on“[a]nyone who hassuffered discriminatory treatdiscussed as law,by regulated activity of areas of range wide a in crimination ity”. The LPD imposes an obligation on “everyone” to “respect the principle of equal Articles 28-40which cameinto force on1January2010). crimination in Serbia. It came into force on 3 March 2009 (with the exception of governinglegislation primary the non-dis is LPDand rightstoThe the equality 2.2.2.2 63 62

Ibid. Ibid. See above, note 54,Article4. 61 The LPD applies broadly to state and non-state actors and prohibits dis prohibits and actors non-state and state to broadly applies LPD The , Article35. , Article41. it overt or covert, onthe groundsof as welltheir asmembersof families orpersonsclose to them, or preferential treatment) treatmentqual be usedto designate any treatment”[T]he terms “discrimination”and“discriminatory shall The Lawonthe Prohibition ofDiscrimination , thatis to say, unwarranted orune discrimination 62 andaright onaperson “who considers him/ inrelation to individuals or groups, omission (exclusion,omission limitation 63 In addition, the LPD providesLPD fora the addition, In race, skincolour, ancestors, be ------citizenship, national affiliation or ethnic origin, language, religious in practice equality or political beliefs, sex, gender identity, sexual orientation, financial position, birth, genetic characteristics, health, disability, marital and family status, previous convictions, age, appearance, membership in political, trade union and other organisations and other real or presumed personal characteristics (hereinafter referred to as: personal characteristics) (emphasis added).

the ICERD and framework relatedthe legal and policy to equality the CRPD 64 65 This definition66 is consistent with the terms used in the CEDAW, and the– which CESCR define discrimination by reference to “distinction”, “exclusion”,67 “restriction” and68 “preference” – as well as the definitions adopted by the HRC when interpreting their respective covenants. However, it is unfortunate that Article 2 of the LPD includes the term “unwarranted” without Theproviding LPD does details not as indicate to criteria whether upon whichthe subjective discrimination intention may of be the justified. perpetrator preted the absence of any requirement in the LPD as an indication that the sub jectiveis relevant intention to the is determination not relevant. of This discrimination; is consistent however, with international courts have law inter and- 69 - intentionally or unintentionally. best practice which specifies that70 an act of discrimination may be committed

64 CEDAW, Article 1. 65 ICERD, Article 1(1). 66 CRPD, Article 2. General Comment No. 18 67 See above, note 43, HRC, , Paras 6–7, which provide that “the Committee believes that the term “discrimination” as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms” (emphasis added). that is directly or indirectly based on 68 theSee prohibited above, note grounds 25, CESCR, of discrimination Para 7, which and provides which has that the “discriminationintention or effect constitutes of nullifying any or distinction, impairing exclusion, restriction or preference or other differential treatment

the recognition, enjoyment or exercise, on an equal footing, of Covenant rights. Discrimination also includes incitement to discriminate and harassment” (emphasis added). 69 For example, in the decision of the Appellate Court in Nis, GŽ 487/16 from 23 March 2016, it has been stated that “in determining the existence of discrimination, intention or motive is not relevant, given that the aim of protection against discrimination is legal clarification of the situation – the unacceptability of conducted act and its consequences, regardless of whether this can be attributed to the defendant.” 70 See above, note 24, Principle 5; the CERD, CEDAW Committee and CRPD each define discrimination by reference to its “purpose or effect” (see: ICERD, Article 1(1); CEDAW, Article 1; CRPD, Article 2). GeneralWhile the Comment text of the No. ICCPR 18 and ICESCR do not include this language, the HRC and CESCR have adopted it when interpreting the relevant provisions regarding non-discrimination: see above, note 43, HRC, , Paras 6-7, which provide that “the Committee believes that the term “discrimination” as used in the Covenant should be understood to imply any distinction,which has exclusion, the purpose restriction or effect or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of orall indirectlyrights and based freedoms”; on the see prohibited above, note grounds 25, CESCR, of discrimination Para 7, which and provides which has that the “discrimination intention or effect consti of- tutes any distinction, exclusion, restriction or preference or other differential treatment that is directly

nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights. Discrimination also includes incitement to discriminate and harassment” (emphasis added). 47 48 EQUAL RIGHTS TRUST 76 75 74 73 72 71 General in CESCR the by elaborated as prohibited, are discrimination of forms law,international Under tion. requiresfournon-discrimination to that right the discrimina of forms to approach its is shortcoming biggest LPD’s the Perhaps Forms ofDiscrimination treated asa“severe form of discrimination”. is way,it imperfectwhere an in albeit 13, Article in addressed however,is this grounds; multiple on discrimination fromprotection is 2 Article from omission includes colleagues and professional associates. Finally, it is noted that the main cate that the term in Serbian does in fact reflect the concept of “association”, and English concept of “association”, the than narrower be to appears English into Serbian from to” “close term the as required by internationallaw them”), to close persons or families their of “members to referring (by teristic protecteda with characperson person’sanother a towith due association tion discrimina includes Similarly,it characteristics”). personal “presumed to ring referprotected(bycharacteristic particular a has person a that not, or correct law international byrequired as perception by discrimination includes 2(1) Article tion” may cover thelatter). status, maternity and pregnancy of exception the status”,with “other under bodies treaty UN by of thegroundsall protected undertheinternationalcovenants or recognised grounds,prohibited of list open-ended an referenceto by discrimination defines It practice. best international with consistent is LPD the of 2(1) Article in discrimination of groundsprohibited the to approach The 78 77

74 See above, note 24,Principle5. (emphasis added). group)” a of member past a or group particular a of rights the of supporter a is or colour skin similar a child with a disability) or includes also Membership concerned. individual the by self-identification upon based contrary,be the to exists justification no if shall, identification grounds, prohibited the of more or one by distinguished is person a whether determining “[i]n that provides which 16, Para CESCR, 25, note above, see discrimination: of The CESCR has recognised both discrimination by perception anddiscrimination by associationasforms CEDAW, Article11(2). comparable to discriminationontheprohibited grounds stated above.” or dignity; human is that manner undermines serious a in such freedoms and rightsperson’s (ii) a of enjoyment whereequal adverselythe affects disadvantage;(iii) prohibited systemic perpetuates be or must causes ground (i) other discrimination: any on explicitly the based on prohibited “[d]iscrimination being characteristics, to addition listed in that, provides which 5, Principle 24, note above, See See above, note 12,p.37. See above, note 24,Principle5. See above, note 25,CESCR,Para 16. ICCPR, Article2(1)and26;ICESCR,2(2). and best practice; best and association 72 with a group characterized by one of the prohibited grounds (e.g. the parent of a of parent the (e.g. grounds prohibited the of one by characterized group a with and “national or social origin” social or “national and perception 75 namely, discrimination due to a perception, whether perception, a to due namely,discrimination by others that an individual is part of such a group (e.g. a person has 78 76 the Equal Rights Trust’s legal consultants indi andbestpractice. 73 (however, “national affilia (however,“national 77 While the translation While of 71 andexpressly includes ------and inter in practice equality national best practice.79 The forms are: 80 Comment No. 20, the81 CPRD Committee in General Comment No. 6, - direct discrimination; indirectdenial of discrimination; reasonable accommodation. harassment; and

The LPD prohibits a larger number of apparently distinct but practically over framework relatedthe legal and policy to equality of the four forms of discrimination which are required to be prohibited under- lapping forms of discrimination. Between the prohibitions it contains, three internationallegal framework law on are equality included. and However, is discussed and significantly,further below. it omits denial of reasonable accommodation. This constitutes a significant shortcoming in Serbia’s

In addition,The forms the Article of discrimination 5 lists seven are “forms direct of anddiscrimination”: indirect discrimination, as well as violation of the principle of equal rights and obligations, calling to account, associating for the purpose of exercising discrimination, hate speech and disturbing and humiliating treatment. direct discrimination and some others may be seen as elaborations of certain of Inthe practice, four key twoforms of ofthese discrimination. are better characterisedThey are discussed as different in more formulations detail below. of

Direct Discrimination

Two provisions of the LPD ostensibly prohibit direct discrimination which is a cause ofDirect some discrimination confusion. Article shall 6 occur defines if an direct individual discrimination or a group as of follows: persons, on the grounds of his/her or their personal characteristics, in the same or a similar situation, are placed or have been placed or might be placed in a less favourable position through any act, action or omission. less favourable treatment by reference to a person or group in a comparable This definition is broadly consistent with international best practice. It includes 82 situation (referring to “in the same or a similar situation”).

However, Article 8 of the LPD defines a concept outside of international best practice: “violation of the principle of equal rights and obligations”. It provides:

79 See above, note 25, CESCR, Paras 7, 10 and 28. 80 See above, note 25, CRPD Committee, Para 18. 81 SeeIbid. above, note 24, Principles 5 and 13. 82 , Principle 5. 49 50 EQUAL RIGHTS TRUST 85 84 83 characteristic ataparticulardisadvantage. of generalhas theeffectthat application persons a protectedwith ofputting tion succinctly capture the definitions of indirect discrimination used in the Declara not does and vaguely-defined is discrimination” of prohibition and equality of “principle the discrimination.”of of concept prohibition The and equality of ple apparentlyis princi that the omission on or based action refers 7 cle act, to“an reflect to attempt however,practice;Arti best confusing. internationalsomewhat an is language the be to appears discrimination indirect of definition This Article 7definesindirect discrimination asfollows: Indirect Discrimination fied against strictly definedcriteria.” justi exceptionally,be veryonly can permitted it be when “may discrimination of attempts to justifydirect discrimination. The Declaration provides directthat scrutiny particular for need the identifies practice best International achieveit. to taken measures the of proportionality and “consequence” or “objective” its to reference by justified be may conduct such that provides 8 Further,Article required. is 8 Article under prohibitionseparate a why unclear is It LPD. the of 6 Article under discrimination direct of definition squarelythe falls within tics” the imposition of obligations “basedonhis/her or their personal characteris erly understood underinternationallaw. of rights Thedenial orfreedoms and prop as discrimination, direct from distinct clearly be to appear not does This and occupation,Article 2(2)(b). 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment persons”; other to compareddisadvantage particular in (…) person a put can practice provides 2(2)(b), Article origin, ethnic or racial of Ibid. Ibid. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment regardless 84 and in the EU Directivesthe EU in and , Principle5. group ofpersons,ifthe objective orthe consequence ofthe meas lar situation,are notdeniedto orimposed upon anotherperson or freedomsthein a simi same or obligations has or imposed that, their personal characteristics, isunwarrantedlyand denied rights occurif anindividualoragroup or persons, basedonhis/her of A violationoftheand obligations principleofequalrights shall of achieving that objective are appropriate andnecessary. means the and objective lawful a by justified is it unless crimination, apparently andprohibition basedonthe ofdis principleofequality in aless favourable actionoromissionthat position through is anact, accounton als, theiror his/her of personal characteristics, is placed Indirect discriminationoccurs ifanindividualoragroup ofindividu not commensurate with the objective achieved through them. undertakenaremeasures the if and unjustified, undertakenis ures

85 which refer to a provision, criterion or practice or provision,criterion a referto which 83 “where an apparently neutral provision, criteria or criteria provision, neutral apparently an “where Council Directive ------is in practice equality placed Article 7 also appears to refer only to conduct that has already occurredwould put (“ in a less favourable position”), rather than This including means that a provision, persons criterionare una or practice that has the potential to be discriminatory86 if applied (i.e. “ a person (…) at a particular disadvantage”). - itsble operation/application. to challenge the operation The basisof an upon actual which or proposed indirect discriminationprovision, criterion may beor practice unless they have already been subjected to it, rather than and in advance the inter of 87 and CESCR. framework relatedthe legal and policy to equality justified in Article 7 is,88 however, consistent89 with the Declaration - pretation of the HRC

Harassment 90 Harassment is a form of discrimination recognised91 and internationalunder international best practice. human92 rights law, as explained by the CPRD Committee in its General Comment No. 6 and the CESCR in its General Comment No. 20, lows: 93 The LPD defines harassment as a form of discrimination. It is defined as fol- It is forbidden to expose an individual or a group of persons, on the basis of his/her or their personal characteristics, to harassment and humiliating treatment aiming at or constituting violation of his/her or their dignity, especially if it induces fear or creates a hostile, humiliating or offensive environment.

The reference to the violation of dignity and the creation of a “hostile, humiliating or offensive environment” closely mirrors the definition of harassment in PrincipleHarassment 5 of the Declaration constitutes which discrimination provides: when unwanted conduct related to any prohibited ground takes place with the purpose or

86 SeeIbid. above, note 24, Principle 5. 87 , Principle 5, which provides that indirect discrimination may be permitted if it is “objectively justified by a legitimate aim, andGeneral the means Comment of achieving No. 18, that aim are appropriate and necessary.” 88 See above, note 43, HRC, Para 13, which provides that “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.” 89 andSee above,objective. note This 25, willCESCR, include Para an 13, assessment which provides as to thatwhether “[d]ifferential the aim and treatment effects ofbased the measureson prohibit or- ed grounds will be viewed as discriminatory unless the justification for differentiation is reasonable

reasonableomissions are relationship legitimate, of compatibleproportionality with between the nature the of aim the sought Covenant to be rights realized and and solely the measuresfor the pur or- pose of promoting the general welfare in a democratic society. In addition, there must be a clear and

90 omissions and their effects.” 91 See above, note 25, CRPD Committee, Para 18. 92 See above, note 25, CESCR, Para 7. See above, note 24, Principle 5. 93 See above, note 54, Article 5. 51 52 EQUAL RIGHTS TRUST 97 96 95 94 as follows: The LPD prohibits “calling to account” as a form of discrimination. Victimisation falls shortofSerbia’s obligations under international humanrights law. below, this discussed as but accommodation, reasonable of denial the of ception of discriminationonthegrounds ofdisability. TheLPDPDprovides anarrow con mended thatdenialofreasonable accommodationshouldbeprescribed asaform are explicitly included in anti-discrimination laws.” nor recognition thatthedenialofsuchaccommodationisaform ofdiscrimination mittee expressed concern that“neither theconceptofreasonable accommodation Com CRPD the 2016, in report state Serbia’s on Observations Concluding its In that reasonable accommodationisprovided.” ensure to steps appropriate all “take to parties state requires 5(3) accommodation”Article and reasonable of denial including discrimination, of forms all “includes disability,which of basis the on discrimination all prohibit to parties staterequires CRPD specifically,5(2) disability Article of ground the to respect individualsrelated to isations to provide reasonableaccommodation “for differentof capabilities privateand public Declarationon the duty of the 13 ciple outlines sector organ of reasonable denial accommodation – the on any define grounds not – as does a form LPD of discrimination. the Prin that concern significant of matter a is It Lack ofProtection for DenialofReasonable Accommodation its in terms General CommentNo.6publishedin2018. identical almost in definition this adopted Committee CRPD The 99 98

Ibid. CRPD Committee, CRPD, Article2. degrading, humiliatingoroffensive environment.” with thepurposeoreffect ofviolatingthedignityapersonandcreating anintimidating,hostile, discrimination when unwanted conductrelated to disabilityorotherprohibited grounds takes place See above, note 24,Principle5. See above, note 54,Article5. See above, note 25,CRPDCommittee, Para 18(d),provides that , Article9. dating, hostile,degrading, humiliatingoroffensive envi creatinga personorof of effectan intimi theviolating of dignity offeredintendingor to offerevidence treatment. discriminatory of toing request protection from discrimination, ordueto having treated,solely orpredominantly onaccountrequestingof orintend unwarrantedly treated worsethan others are treated would or be shall existDiscrimination a groupindividual or an if persons is of

Concluding Serbia observations: one or moreor one prohibited grounds , UNDoc.CRPD/C/SRB/CO/1, 23May 2016,Para 9. 95 97 “[h]arassment” isaform of The CRPD CommitteeCRPD The recom ” (emphasis added). With added). (emphasis ”

ronment. 98 It is defined 94 99 - - 96 - - - - -

This concept is similar to that of victimisation under international law refers to in practice equality or to proceedings which seek to enforce compliance with equality provisions.100 adverse treatment or adverse consequence as a reaction to a person’s complaint must protect individuals from victimisation.101 ofThe discrimination Declaration and is one a number means of by EU which Directives the legal specify system that may a state’s protect legal individu system Defining victimisation as a form incorporate the requirement under certain EU Directives regarding victimisa- tionals from as it the does phenomenon; not impose however,a positive it obligationis noted that on the employers LPD does to not introduce completely the framework relatedthe legal and policy to equality 102 nor does it provide express protection from dismissal in the event of a complaint regarding discrimination. protection measures against victimisation, 103 -

Hate Speech Article 11 as follows: 104 The LPD prohibits “hate speech” as a form of discrimination. It is defined in It is forbidden to express ideas, information and opinions inciting discrimination, hatred or violence against an individual or a group of persons on account of his/her or their personal characteristics, in public organs and other publications, in gatherings and places accessible to the public, by writing out and displaying messages or symbols, and in other ways. 105

Article 11 is a broad provision that prohibits: (i) incitement of discrimination; (ii) incitement of hatred; and (iii) incitement of violence on the basis of a person Serbiaor group has of obligationspersons’ protected under regionalcharacteristics. and international human rights law to as the right to freedom of opinion and expression. Serbiarespect, must protect guarantee and fulfil the the right rights to freedom to equality of expression and 106non-discrimination, in Article 19 and as well any As a party to the ICCPR, tion is “provided by law and necessary for respect of the rights or reputations of limitation on the right must comply with Article 19(3), namely that the restric- others, [or] for the protection of national security (...) public order, or (...) public health or morals.” 100

101 SeeIbid. above, note 24, Principle 5. 102 , Principle 19. See above, note 86, Council Directive 2000/43/EC, Article 7, and Council Directive 2000/78/EC, Article 11. 103 See above, note 12, p. 11. 104 Ibid.See above, note 54, Article 5. 105 , Article 11. 106 See, for example: ECHR, Article 10 (freedom of expression) and Article 14 (non-discrimination); and Pro- tocol 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, C.E.T.S. No. 177, 2000, Article 1 (non-discrimination); ICCPR, Article 19 (freedom of opinion and expression) and Ar- ticle 26 (non-discrimination); ICESCR, Article 2(2) (non-discrimination); CEDAW, Article 2(b) (non-discrimination); ICERD, Article 2(1)(d) (non-discrimination); CRPD Article 5(2) (non-discrimination). 53 54 EQUAL RIGHTS TRUST 111 110 109 108 107 from greater clarity regarding the definition of violence, including whether such ground.” prohibited a with vated wholly or in partby thevictimhaving acharacteristic or associatedstatus ac ate cle 19(3) ICCPR. International best practice requires states to “take all appropri Arti expressionunder of freedom to right the on limitation justified arguablya is LPD the of 11 Article in violence to incitement on prohibition Similarly,the ment to discriminationasaform ofdiscrimination. Further, it is consistent with the approach adopted by the CESCR to define incite namelyrightthe to protectednon-discrimination ICCPR.2(1) and 26 Articles in others”,of (…) rights the of “respect for necessary is it that basis the on ICCPR 19(3) Article under justified arguably is but expression of freedom to right the The prohibition of incitement to discrimination in Article11 of theLPD restricts intolerance, discriminationandincitement to hatred, ontheother.” combat to and hand, one expression,the and on opinion freedomof toright the facedchallenge in identifying ways to reconcile the need to protect andpromote porteur onFreedom of OpinionandExpression has recognised continuing “[t]he expression.of freedom and non-discrimination to rights the between interrelationship important the particular,on in commented, has hatred andincitement tounder theirrespective violence covenants. have issued guidance on states parties’ obligations with respect to incitement to HRCRacial(CERD) the of Discrimination Elimination Committeethe the on and 19(3). Article requirementsof the meet must 20(2) Article of and ICCPR, 20 19 Article Article between relationship important the emphasised has HRC The racial discrimination,aswell asallactsofviolenceorincitement to suchacts.” to incitement hatred, or superiority racial on based ideas of dissemination all law by punishable offence an “declare to statesrequire ther, ICERD 4(a) Article religious or racial national, violence.” of or Furhostility discrimination, to incitement constitutes “advocacythat hatred of law by prohibition the requires which ICCPR 20(2) Article with comply to required is Serbia time, same the At 113 112

See above, note 25,CESCR,Para 7. the exercise Racist hate ofthatright. speechpotentially silences thefree speechofitsvictims.” Conventionof the also enjoy therightto freedom ofexpressionfreedom and from racialdiscrimination in protection the to entitled groups and persons the protectedgroups; of benefit the for restriction its and sons from racist hate speech is not simply oneof opposition between theright to freedom of expression Ibid. Ibid. 2011, Paras 50–52. See above, note 24,Principle7. See above, note 36,Para 3. See, for example: HRC, tion to penalise, prevent and deter” “incitement to violence that is moti is that violence to “incitement deter” and prevent penalise, to tion ; CERD, , Para 50. General commentArticle No.34: Freedoms 19: opinion and expression of General recommendationCombatingNo. 35: racist hate speech ibid 107 ., HRC, Paras 50-52 and CERD, Para 28, which provides that “[t]he protection of per and that any prohibition on “hate speech” for the purposes the forspeech” “hate on prohibition any that and 113 However, it is noted that Article 11 may benefit may 11 Article that noted is However,it 112 110 , UN Doc. CERD/C/GC/35, 2013. The UN Special Rap Special UN The , UN Doc. CCPR/C/GC/34, Doc. UN , 108 In recent years,recent In 111 109 TheCERD ------violence must be imminent. in practice equality of this Article in a piece of civil114 legislation as opposed to within the criminal legal framework. Further, a key question arises as to the inclusion

The prohibition on incitement of hatred per se in Article 11 is problematic in terms of freedom of expression. The provision does not require that that the

115 saryhatred restriction lead to discrimination, on the right to hostility freedom or of violenceexpression (such for asthe required purposes under of Article Arti- framework relatedthe legal and policy to equality cle 20(2) ICCPR), and, as such, it may be difficult to argue that it is a neces-

Association19(3) ICCPR. for the Purpose of Exercising Discrimination

Finally, the LPD prohibits “associating116 for the purpose of exercising discrimination” asIt a isform forbidden of discrimination. to associate for It the is defined purpose as of follows:exercising discrimination; that is, this Law prohibits activities of organisations or groups that are aimed at violating freedoms and rights guaranteed by the Constitution, rules of international law and the law, or at inciting nationally, racially, religiously or otherwise motivated hatred, divisions or enmity. 117

As a party to the ICCPR, Serbia is required to protect the right to freedom of association under Article 22 of the Covenant, and any limitation on the right must meet the requirements specified in Article 22(2), namely that the limitation is public“prescribed health by or law” morals and or “necessary the protection in a ofdemocratic the rights societyand freedoms in the interestsof others. of national security or public safety, public order (ordre public), the protection of that “racist organizations which promote and incite racial discrimination be It is notable that the CERD has emphasised that Article 4(b) ICERD requires 118 beingdeclared used illegal against and discriminatedprohibited.” minorities.However, the119 Committee have also warned haveagainst noted the adoptionconcern at of broadly overly broaddrafted provisions, criminal law which provisions may have that the may effect have of the effect of violating expression or association rights. Both the120 CERD and the HRC

The UN Special Rap-

114 See above, note 36, Para 46, which provides that “real and imminent danger of violence resulting from the expression” is “essential” when determining whether expression ought to be prohibited pursuant to Article 20(2) ICCPR. 115 See above, note 36, Para 43. 116 Ibid.See above, note 54, Article 5. 117 , Article 10. 118119 IbidSee above, note 110, CERD, Para 21. 120 ., Para 20. See above, note 108, Para 34. 55 56 EQUAL RIGHTS TRUST in “severe consequences” for the individual. While it is consistent with interna with consistent is it While individual. the for“severe consequences” in repeatedis resultsgrounds,that or discrimination multiple on person againsta discrimination to refer (7) and (6) 13(5), Articles example, For LPD. the of 12 to 6 Articles in defined discrimination, of forms existing the of anyin to presentrelation be may that factors discrimination” of “forms as It terms discrimination. incorrectly of definition the into confusion some introduces 13 Article Article 13definesthefollowing as“severe forms ofdiscrimination”: into thedefinitionofdiscriminationandduplication. confusion introduce to is cases many in However,effect 12. the to 6 Articles of certain manifestations of discrimination which otherwise already fallwithin one on elaborate to be to appears LPD the of III Part and 13 Article of purpose The categories ofdiscrimination,namely:additional two contains LPD the discrimination, of forms those to addition In Further Elaboration on“Forms” ofDiscriminationundertheLPD discriminatory orarbitrary application. hatred”.of “incitement defined narrowly more the than rather “division”; racial or religious of tion and expression hasfurthernoted concern atlaws criminalising thepromo porteur onthepromotion andprotection oftheright to freedom ofopinion 121

7. 6. 5. 4. 3. 2. 1. See above, note 36,Paras 51–52.

discrimination that results in severe consequences for the individual dis discrimination that iscommitted anumberoftimes (repeated discrimina againstdiscrimination ormoreindividuals onthe two personal basis of slavery, trafficking in human beings, apartheid, genocide, ethnic cleansing, advocating discriminationthrough publicorgans; advocatingor exercising on thediscrimination statepart of organs orin teristic ofhis/hers. towards enmity thetheon aggrieved grounds personal characa of party act punishableby law, predominantly orsolely motivated by hatred or other property,persons or criminated against, especially involvesit if an nation) against oneandthe sameindividualoragroup ofpersons; tion) oriscommitted over anextendedtime (extended periodof discrimi characteristics (multipleorintersecting discrimination); as well asadvocating any ofthe above; the course ofproceedings conducted before state organs; identity, sexual orientation ordisability; gender gender, opinions, religiousracial political or affiliation, language, “Special casesofdiscrimination” (Part IIIoftheLPD). “Severe forms ofdiscrimination” (Article13);and causing and inciting inequality, hatred and enmity on the grounds of national, onthe hatred grounds andenmity ofnational, inequality, inciting and causing 121 Theexpansive wording ofArticle 10leaves room for

------122 none in practice equality inherentlytional law to more include severe protection than discrimination from discrimination on the groundon multiple of a grounds,single protected of these are separate “forms” of discrimination. Nor is multiple discrimination characteristic. Further, Article 13(4) refers to offences which should be (and are already) regulated by Serbia’s criminal law rather than civil anti-discrimination law (“slavery, trafficking in human beings, apartheid, genocide, ethnic cleans-

ing”). It is the criminal law, rather than the LPD, in which bias-motives for crimes framework relatedthe legal and policy to equality additionalshould be addressed,sanctions for as violationsdiscussed ofin thePart provision. 2.2.3 below. Finally, despite the reference to “severe” forms of discrimination, Article 13 does not in fact impose any Four of its Articles 123 Part III of the LPD refers to “special cases of discrimination”. outline particular areas of life in which discrimination is prohibited, and political nine refer124 to discrimination on125 certain126 grounds 127or against certain129 groups,128 namely: and healthsex; sexualstatus. orientation; age; children; “national minorities”; 130 opinion and membership131 of a political party or trade union; disability; The purpose and effect of Part III are confusing and the approach it takes incon protection from discrimination i.e. the areas of life in which discrimination- sistent. It conflates references to particular aspects of the scope of the LPD’s itis isprohibited, unclear upon with what Articles basis which certain elaborate protected on characteristics the right to non-discrimina e.g. gender and- tion with respect to certain groups. This arguably creates confusion. Further, others not. sexual orientation, have been singled out for elaboration in this section and Scope of Application

and best prac tice.The LPD imposes obligations on both state and non-state actors132 to respect the right133 to non-discrimination, consistent with international law - Article 4 of the LPD provides that “everyone shall be obligated to respect 122

See above, note 25, CESCR, Para 17 and CRPD Committee, Para 19, which provides that “[d]iscrimination can be based on a single characteristic, such as disability or gender, or on multiple and/or intersecting characteristics”; see above, note 45, CEDAW Committee, Para 18. 123 Ibid.See above, note 54, Articles 15-27. 124 Ibid., Article 20. 125 Ibid., Article 21. 126 Ibid., Article 23 127 Ibid., Article 22. 128129 Ibid., Article 24. Ibid., Article 25. 130 Ibid., Article 26. 131 , Article 27. General Comment No. 18 132 See above, note 43, HRC, , Para 12. 133 See above, note 24, Principle 9. 57 58 EQUAL RIGHTS TRUST 142 141 140 139 138 137 136 135 134 the prohibition appliesinsuchareas. public housing; and industries, housing and accommodation entertainment, hospitality, retail, in as broadly,moresuch services and goods of provision the in discrimination in theprovision of health care services. lic services, and use of public premises and public spaces; in a public administration organ; activity, as outlined in of areas of number a in discrimination prohibits specifically LPD the of III Part non-discrimination, “applies of the Declaration provides that the right to equality, which includes the right to authorities”.public byprotected and regulated field any in fact in or law in discrimination “prohibits ICCPR 26 Article that indicated 18 No. ment rated upon by UN treaty bodies and in the Declaration. The HRC in General Com The areas of life in which discrimination must beprohibited have beenelabo of theLPDmay belodgedwiththeCommissioneragainst any “person”. anyduty-bearers.of class particular Similarly, regarding complaint a violation a limitedtonot is LPD the civilof righttobring 41 The proceedings Article under term “everyone” isdefinedinArticle2(2)asfollows: The discrimination.” of prohibition say,the to is that equality, of principle the in itsentirety.” January 22nd 2013, which on accepted the requestdecision of the a Commissioner for passed Protection of Belgrade Equality contained in in the lawsuit Court Basic First The disability. with persons young of entrepreneur“P.the ownerof the A., M. C.” forrefusedshop, cateringestablishment this to serve groupa pdf availableat: See above, note 12,p.8. Ibid. Ibid. Ibid. Ibid. whom thecomplaintwas submitted”. againstwaspersonwhom complaint “the the lodged”, which39, refersArticle and againsttoperson “the byprovidesincluding statementsfactscase, fromthe taking the establish of shall Commissioner the that See, for example: Commissioner for Protection of Equality,of Protection for Commissioner example: for See, See above, note 54,Article50. See above, note 43,HRC, provisionsthe readingLPD,of the a of on for example:based is above,whichThis see 37 Article note54, , whereby the Commissioner reported that: “A lawsuit was brought on 2nd October 2012 against the against 2012 October “A2nd that: reportedon broughtCommissioner was lawsuitwhereby the , , Article60. , Article54. , Article52. , Article51. ating onthe ofthe territory Republic ofSerbia (emphasisadded). territory under its jurisdiction, regardless underitsjurisdiction, territory ofwhether that individ individual residingon the the of territory Republic Serbia of ora [T]he terms shall be usedto “person” and “everyone” designate an stateless person, ual is anationalofthe Republic ofSerbia, some other state ora http://ravnopravnost-5bcf.kxcdn.com/wp-content/download/cpe_annual_report_2012. 141 however, decisions of the Commissioner have determined that General Comment No.18 Table 2A as well as any legal entity in allareas ofactivity regulated by law”. . This includes: discrimination by a public official 136 in labour relations; 142 , Para 12(emphasisadded). 140 The LPD does not expressly prohibit Regular Annual Report for 2012 registered oroper 137 intheprovision ofpub 138 in education; 135 Principle 8 Principle , 2013, p. 79, p. 2013, , 134 - - 139 and - - - Exceptions to the Application of the LPD in practice equality

There are a number of express exceptions to the application of the LPD. the ground of a protected characteristic is permitted if that characteristic is a “gen Article 16 provides that direct discrimination against a prospective employee on - uine and decisive precondition for performing the said job” and “the objective to framework relatedthe legal and policy to equality be achieved is justified”. This is broadly in line with international best practice in this area, which provides for exceptions where there is a “genuine occupational requirement” for a prospective employee to have certain particular protected143 characteristics which are inherent to a person’s ability to perform a certain role.

Article 18 of the LPD provides a broad exemption to the application of the Act for the conductThe conduct of religious of priests, officials: that is to say, religious officials, which is in keeping with a religious doctrine, beliefs or the objectives of churches and religious communities entered in the register of religious communities, in accordance with the law regulating the freedom of religion and the status of churches and religious communities, shall not be considered to constitute discrimination.

Under the treaties to which Serbia is a party, the right to freedom of thought, conscience and religion is not an unlimited right; it may be subject to “such The effect limitations as are prescribed by law and are necessary to protect public safety,144 order, health, or morals or the fundamental rights and freedoms of others.” of Article 18 of the LPD is to permit discrimination, including direct discrimination, by religious officials on any grounds provided that the conduct is “in permissionkeeping with for a religiousdirect discrimination doctrine, beliefs is not or theconsistent objectives with of internationalchurches and bestreli- practicegious communities which provides entered that in direct the register discrimination of religious may communities.” be permitted The“only broad very

145 exceptionally, when it can be justified against strictly defined criteria”.

Finally, Article 25 of the LPD provides that it is prohibited to discriminate against an individual or group on the grounds of political belief, and membership or non-membership of a political party or trade union. However, it provides a broadLimitations exception to pertaining this right to non-discriminationpersons performing ascertain follows: state functions, as well as limitations necessary to prevent advocating or

143 See above, for example, note 86: Council Directive 2000/78/EC, Article 4(1). ligion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a 144 ICCPR, Article 18(3); See also: ECHR, Article 9(2) which provides that “[f]reedom to manifest one’s re-

democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 145 See above, note 24, Principle 5; see also, note 12, p. 8. 59 60 EQUAL RIGHTS TRUST 147 146 define theconceptofreasonable accommodation nor recognise thatdenial explicitlynot does it Observations, Concluding recent most its in Committee social inclusionofpersonswithdisabilities. and equality advance to actors state on duties imposes and laws, different ities which were previously includedinapiecemealmannernumberof consoli LPDPD The 2009. dated existing prohibitions ondiscriminationagainst personswithdisabil in it ratifying and 2007 December in CRPD the three years priorto the LPD. Itwas also adopted prior to Serbia signing ary 2007. The LPDPD was the first anti-discrimination law in Serbia, adopted Janu 1 on forceintoentered and 2006 April 17 on adopted was LPDPD The 2.2.2.3 the LPDprovides: of 14 equality.Article to right the promote to order in taken be measures such to failing by practice best international of short falls ever,LPD the How taken. be to measures action positive permits LPD the that welcome is It vantage andto accelerate progress towards equalityofparticular groups.” “a range of legislative, administrative and policy measures to overcome past disad requirespositiveequality action”, toeffective, right be “tothe that includes which As outlined with respect to the Constitution, Principle 3 of the Declaration provides Positive Action the Declaration. tional circumstances inwhich direct discrimination may bejustifiedunder excepthe with inconsistentties”.arguably overbroad and exceptionis This activi racist or Nazi fascist, pursuing or advocating “prevent to necessary of discriminationontheground ofpoliticalbelieforother membershipis of persons whomtype theprovision would apply to. Itissimilarly unclear what typethe nor justified, and necessary is discrimination such whytions”, ination ispermittedrelation in to “personsperformingstate certain func discrim of type what clear not is It ill-defined. and vague is exception This 148

See above, note 55,Article1. Ibid See above, note 24,Principle5. ., Principle3. referred to inparagraph 1ofthis Article. withthe law, shallnotbeconsidered to constitute discriminationas Naziorracist activities,fascist, prescribedpursuing inaccordance qual positionshallnotbeconsidered to constitute discrimination. tection andprogress ofanindividualoragroup ofpersonsinanune Measures introduced for the purposeofachieving fullequality, pro The Lawonthe Prevention ofDiscriminationPersons with Disabilities 146 148 However, as noted by the CRPD require - - 147 that ------as required by Article in practice equality 149 of such accommodation is a form of discrimination, 5(3) of the CRPD. ilar coverage to the LPDPD. The LPD expressly prohibits discrimination on the Serbia’s comprehensive and anti-discrimination provides that discrimination law (the LPD) againstprovides persons largely withsim- 150 The main difference is that ground of disability, 151 disabilities is a “special case of discrimination”. framework relatedthe legal and policy to equality VIIImisdemeanour of the LPD does proceedings not identify may discrimination be available for against slightly persons more specificwith disabili forms of discrimination affecting persons with disabilities under the LPDPD, as Part - ties specifically as a basis for misdemeanour proceedings (unlike certain other Thegrounds LPDPD of discrimination). contains two key enforcement mechanisms: civil proceedings which may be initiated by “a person with disabilities who has been discrimi

and misdemeanour proceedings- nated against” or “a person accompanying the152 person with disabilities” where that person has experienced discrimination; Table 2A. These are dis cussedin which in finesPart Threemay be of imposed the study. with respect to discrimination 153against persons with disabilities in particular activities, as outlined in -

The LPDPD does not expressly protect the right to equality as a free-standing “inclusionright; however, of persons Article with 2 provides disabilities that in the all Act spheres is based of social on certain life on principles, an equal including “respect for human rights and dignity of persons with disabilities”, basis”, and “equal rights and obligations”.

Article 3(1)[P]ersons of the with LPDPD a congenital defines “persons or acquired with physical, disabilities” sensory, as f ollows:intellec - tual or emotional disabilities who, due to social or other impediments, do not have any or have restricted opportunities to engage in social activities at an equal level with others, irrespective of whether they are capable of performing the aforementioned activities with the use of some technical aids or support services.

By referring to the existence of “social or other impediments” which may deny or restrict opportunities for persons with disabilities, this definition reflects

149 See above, note 98, Para 9. 150 Ibid.See above, note 54, Article 2(1). 151 , Article 26. 152 See above, note 55, Article 42. 153 See above, note 55: this includes discrimination arising in respect of: membership of associations (Article 46); provision of public services (Article 47); health care services (Article 48); some aspects of education (Article 49), including harassment in education (Article 50); public or private transport (Article 51), including harassment in the context of transport (Article 52); and aspects of legal services (Article 52a). 61 62 EQUAL RIGHTS TRUST 155 154 CEDAW, and the in used “restricting”that with “excluding”,consistent is “differentiating”, definition priority”,this “giving of concepts to referring By Article 3(2)defines“discriminationanddiscriminatory treatment” asfollows: actors, asexplained below. non-state and state both to applying activities, of range a in discrimination on prohibitionsdiscrimination”)specific of contains cases then (“special Act the of discrimination”.Three without Part freedoms and rights the enjoy may bilities disa with persons that ensure shall authorities “public that provides 4 Article The Act does not containanoverarching express prohibition ondiscrimination. of theAct relate to enforcement. Partsand Fivedisabilities; advance with persons of Six toright equality and the Fourauthorities to imposes dutiesonpublic take positivemeasures action to which the prohibition of discrimination in certain areas is elaborated upon; Part in discrimination” of cases “special of number a outlines Three Part Act; the of crimination andforms ofdiscrimination are containedinPartsTwoand One dis of definitions the LPD: the to manner similar a in structured is LPDPD The accommodation to ensure theright to equalityofpersonswithdisabilities. reasonablemake to actors non-state and state on duty the operationalise not tion of persons with disabilities, it is particularly unfortunate that the Act does defini the in disability of model rights human the of incorporation the Given with disabilities: persons of definition following the society.uses in CRPD disabilities The with disabilities, with persons by faced barriers” environmental and “attitudinal the address construct”, social a is disability that “recognises disability of model rights human The CRPD. human the exemplifiedin and law rights international by required as disability”, of model rights “human the 157 156

CEDAW, Article1. Ibid. CRPD, Preamble, Para e. See above, note 25,CRPDCommittee, Para 9. , Article1. or covert manner, onthe orrelated grounds ofdisability reasons. well asto their family members,orpersonsclose to them, inanopen ing, restricting relating orgivingpriority) to personsorgroups, as [A]ny differentiatingor unequaltreatment and/oromission(exclud onanequalbasiswith others. ipation insociety tion with various barriersmay hinder their full and effective partic cal, mental, impair intellectual or sensory Persons withdisabilities include those who have long-term physi 155 andthusensure thefullandeffective participationofpersons ments which ininterac 154 andrequires thestate to 156 - - - - 157 - - - the CERD and the CRPD in practice equality and the CESCR158 when interpreting159 their respective covenants. 160 161 as well as the definitions adopted by the HRC

Article 3(2) expressly includes discrimination by association (“family members, nationor persons by perception close to them”) as required in the sameby international terms as the human LPD, discussed rights law. above. How- ever, there is no express protection against multiple discrimination or discrimi-

Forms of Discrimination framework relatedthe legal and policy to equality

Article 6(1) provides that, “[t]he forms of discrimination are direct and indirect discrimination, as well as violation of the principle of equal rights and obligations.”

The definitions of direct and indirect discrimination in Articles 6(2) and (3) are similar to those adopted in the LPD, and for this reason will not be analysed further. The definition of “violation of the principle of equal rights and obliga- oftions” direct in Articlediscrimination 7mirrors and Article provides 8 of the a broadLPD, and basis the upon same which concerns such expressed conduct apply equally here. It prohibits conduct that already falls within the definition may be justified, contrary to international162 best practice with respect to the justification of direct discrimination. While not expressly and defined conduct as amounting “forms of discrimination”, Article 6 provides as that required the following by international 163conduct “also” best practice. amounts to discrimination: conduct amounting164 to victimisation; 165 to incitement of discrimination, thatWhile discrimination Article 6(1) does occurs not “if expressly the discriminated define “harassment” person is166 treated as a form in an of obviously discrimination, as required by international human rights law, Article 6(4) provides humiliating way, solely or mainly because of his or her disability”. This definition

158 CERD, Article 1(1). 159 CRPD, Article 2. General Comment No. 18 160 See above, note 43, HRC, , Paras 6-7, which provide that “the Committee believes that the term “discrimination” as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms” (emphasis added). that is directly or indirectly based on the 161 prohibitedSee above, groundsnote 25, ofCESCR, discrimination Para 7, which and whichprovides has that: the intention“discrimination or effect constitutes of nullifying any or distinction, impairing theex- clusion, restriction or preference or other differential treatment

recognition, enjoyment or exercise, on an equal footing, of Covenant rights. Discrimination also includes incitement to discriminate and harassment”(emphasis added). 162 See the discussion in relation to LPD, Article 8 above. 163 Ibid.See above, note 55, Article 6(4)(1). 164 , Article 6(5). see the discussion with respect to the LPD above. 165 For a summary of international best practice relating to victimisation and incitement to discrimination,

166 We refer to the references cited with respect to the definition of harassment under the LPD above. 63 64 EQUAL RIGHTS TRUST 171 170 169 168 167 adaptations” for personswithdisabilities,asfollows: “technical make to failure the to refer which LPDPD the in provisions defined as required under international humanrights law. Act, the of 6(1) Article in discrimination of form a as accommodation sonable requiredreaas CRPD,of tion the denial of define 5(3) it Article does under nor The LPDPD does not impose a generalduty to make reasonable accommoda in list of A full the provisions in theLPDPD which prohibit harassment is provided For example, inthecontext ofhealthservices,Article17(4)provides: activities. of range wide a in disabilities with persons of “harassment” the hibit pro LPDPD the Partmanyof provisionsThreein that notable is it limitation, this son’s per dignity or creatinga an intimidating, violating hostile or offensiveof effectenvironment. Despite or purpose the has which conduct” “unwanted to refer law, rights human does not capture all the components of harassment as defined under international 173 172 Table 2A

Ibid. Ibid. See above, note 24,Principle5. humiliating oroffensive environment.” degrading, hostile, intimidating, an creating of and person a of dignity the violating of effect or purpose ination when unwanted conduct related to disability or other prohibited grounds takes place withthe We refer to thereferences cited withrespect to denialofreasonable accommodation undertheLPDabove. See above, note 55,Article13(5)(3). See above, note 55,Articles11(3),15,17(4),20,26and29, as outlinedinTable 2A. See above, note 25, CRPD Committee, Para 18(d), which provides that “[h]arassment” is a form of discrim , Article22(4). , Article17(4). employer by employing the personwith disabilities. the by earned profits the torelation in disproportionate not are or disabilities,theif costs adaptation of are byborne not the employer workplace, which would allow the efficient work of the person with is:(…)Refusalment to perform thetechnical adaptationthe of employ of field the in disability of grounds the on Discrimination users withdisabilities. technical adaptation of afacilityneededfortheprovision of servicesto includes availability particularly: service (…) withrespectthe on groundsDiscrimination ofdisability to [public] during theirstayinahealthcareinstitutionbecauseofdisability. 4) Any … health services is: againstDiscrimination persons with disabilities inthe provision of . harassment, insulting or disparaging of persons with disabilitiespersons with of disparaging or insulting harassment, 167 andinternational bestpractice. 172 Refusal to perform the to perform Refusal 171 168 There are two narrowly In particular, it does not not does it particular, In 173 170 - 169 - - - - -

equality in practice equality

While the inclusion of these provisions is welcome, the duty to make “technical Declaration.adaptations” is significantly narrower than the concept of reasonable accommodation, as174 defined under the CRPD and understood under Principle 13 of the [N]necessary The CRPD and defines appropriate reasonable modification accommodation and adjustments as: 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 framework relatedthe legal and policy to equality fundamental freedoms. 175

It is unclear whether “technical adaptations” extends beyond adaptations to the physical environment, which is why it is significantly narrower than the “modifi- Scopecation ofand Application adjustment” required for reasonable accommodation.

Article 2 of the LPDPD states that the legislation is based on the principle of “inclusion of persons with disabilities in all spheres of social life on an equal basis” (emphasis added). Part Three of the Act specifically prohibits discrimination in a wide range of areas of life, including education, health care services, employment and transportation, and these are not said to be limited to public sector services (with the exception of Article 13). These include: ProvisionProceedings of beforepublic aservices public authorityand the use (Article of public 11); premises and spaces Admission to, and leadership of, associations (Article 12); (Article 13), including “harassment” (Article 15); Discrimination in health care services (Article 17), including “harassment” (Article 17(2)(4)); Discrimination with respect to “admission” to and “exclusion” from edu- tocational ensure institutions the reasonable (Article accommodation 18), and “harassment” of students (Article with disabilities 20). Howev in- educationer, of particular and denial significance of reasonable is the accommodationabsence of any express as a form requirement of discrim

- ination; Discrimination in employment and labour relations (Article 21), including “harassment” (Article 26); Discrimination in transportation (Article 27), including harassment (Ar- ticle 29);

necessary to require public and private sector organisations to provide reasonable accommodation for 174 differentSee above, capabilities note 24, Principle of individuals 13, which related provides to one that or more “[t]o prohibitedachieve full grounds. and effective Accommodation equality it may means be

lifethe necessaryon an equal and ba appropriatesis with others. modi Itfications should not and be adjustments, an obligation including to accommodate anticipatory difference measures, where to facili this- tate the ability of every individual to participate in any area of economic, social, political, cultural or civil

would impose a disproportionate or undue burden on the provider.” 175 CRPD, Article 2. 65 66 EQUAL RIGHTS TRUST 182 181 180 179 178 177 176 nancy, marital and family status in certain areas. area”,“any in der LGEThe was adoptedprohibits It 2009. in ground the on discrimination gen of 2.2.2.4 such measures. stitute reasonable accommodation andnosanctionsapply for failure to take disabilities”. However,with persons as discussed of above, many equality of the of measures arguably promotion con the “for governments, local including authorities, public by adopted be must that measures of range a outlines Act persons with disabilities” – do not constitute discrimination. disadvantagedthe of(…) position “eliminat[e] or disabilities” with persons of position“improve the to seek which those as such – measures positiveaction to equality, as required by international best practice. The LPDPDdoesnotspecifythatpositive actionisamandatory part oftheright Positive Action with international law. applies andthepersons who owe dutiesundertheAct to ensure compliance preferable for theLPDPDto state expressly theareas ofactivity to which it however,be would, It transport. and education, care, health employment, of contexts the in operating actors non-state to on equally prohibition applies the discrimination such, as 13); Article of exception the (with activities sec tor public to limited not are prohibited, is discrimination which in Act, the of Three Part however,in actors; included non-stateactivities of the sibilities crimination”. that personswithdisabilitiesmay enjoy therights andfreedoms withoutdis The LPDPD provides that “public authorities” are expressly required to “ensure provides that: “[m]arriedcouplesanddomestic partnersare equalpursuant to law.” provides that,“[a]ll people are equal, irrespective of their family and marital status”, and Article 27, which which 26, labor”,regulatingArticle law the with accordance in contract employment the terminate and because ofpregnancy andparenthood mustnotbe theground for assigning aperson to inadequate job life orany otherarea.” familycivil, economy, cultural, politics, social, of area the in persons of group a or person a and to freedoms rights human of enjoyment or exercising denying or preventing jeopardizing, hindering, at aimed prioritizing) or (exclusion,restrictiontreat tofailure or treatment unequal differentiationor unjustified Ibid. See above, note 55,Articles11–31. See above, for example, note 56, LGE, Article 16, which provides, in part, that: “[t]he absence from workfrom absence “[t]he that: part, provides,in which 16, Article LGE, 56, noteexample, above,for See any is discrimination “[g]ender-based that part, in provides, which 4, Article LGE, 56, note above, See See above, note 55,Article8. See above, note 24,Principle3. We refer to thereferences cited inrelation to thescopeofapplicationLPDabove. , Article4. Discrimination of associations of persons with disabilities (Article 31). Discrimination related to maritalandfamily relations (Article30);and The Law on Gender Equality The LawonGenderEquality 177 There isnosimilarexpress statement regarding therespon 181 aswell asprohibiting discrimination ongrounds of preg 178 182 Itimposes duties onthestate 179 Rather itprovides that 180 Part Four ofthe 176 ------equality in practice equality and, most significantly, on many non-state actors to promote183 gender equality, some of which are enforced by fines and reporting obligations.

The LGE was adopted in the same year as Serbia’s comprehensive anti-discrimi and- nation law (the LPD) and there and is significant provides thatoverlap discrimination between the on two the laws. ground184 The LPD also expressly prohibits185 discrimination on theto whichground misdemeanour of “gender” pro 186 “marital and family in additionstatus”, to the general right to initiate civil proceedings. framework relatedthe legal and policy to equality of gender is a “special187 case of discrimination” 188- ceedings apply, While the LGE elaborates on the prohibition of gender discrimination in specific areas such as employment, education and participation in public life, these are arguably already covered by the LPD, given its broad scope of application pursuant to Article 4 of the Act. The primary difference between the two laws are uresthe demanding included in positive any legislation action measures in Serbia. that are included in the LGE to promote gender equality in Serbia, which are the most demanding positive action meas- may be initiated by “any person whose rights or freedoms have been violated The LGE contains two key enforcement mechanisms: and acivil regime proceedings of misdemean which 189 Tablebecause 2A he/she.190 is a member of [a] certain sex”; - our proceedings which apply to certain acts of discrimination, as outlined in The enforcement of the LGE is discussed in Part Three of the study.

Article 2Gender of the equalityLGE defines means gender equal equality participation as follows: of women and men in all fields of public and private sector, in accordance with generally accepted rules of international law, recognized international treaties, the Constitution of the Republic of Serbia (hereinafter: the Constitution) and laws, which are to be respected by all (emphasis added).

The LGE does not contain an overarching express prohibition on discrimination on the ground of gender. However, as above, Article 2 provides that persons in “all fields of public and private sector” must respect gender equality.

Article 4 defines “gender-based discrimination” as follows:

183 See references below under “positive action”. 184 Ibid.See above, note 54, Article 2. 185 Ibid., Article 2. 186 Ibid., Article 20. 187 , Article 55. 188 The general right to initiate civil proceedings is provided under the LPD,: see above, note 54, Article 41. 189190 IbidSee above, note 56, LGE, Article 43. .; this includes discrimination by educational institutions (Article 53), discrimination by employers (Article 54) and discrimination by media companies (Article 55). 67 68 EQUAL RIGHTS TRUST 195 194 193 192 191 “against and strictly definedcriteria”. circumstances, exceptional under occur may which crimination dis direct of justification the to respect with practice best international reflect not however,does justified; it be may discrimination indirect which in stances This islargely consistentinternationalwith practicebest regarding thecircum ination, asfollows: discrim of definition the in “unjustified” of meaning elaboratesthe 4 on Article has notariseninpractice. 4 is likely the result of oversight in drafting, rather than deliberate omission, and sultants have indicated that the omission of “effect” from the definition in Article con legal Trust’s Rights Equal The respectivetreaties. their interpreting when and theCRPD nition is otherwise consistent with the terms used in the CEDAW, defi at…”),the “aimed is that conduct toreference its (in effect its to also than the to only refers 4 Article that exception the With 196

incitement to discriminate andharassment” (emphasisadded). includes also Discrimination Covenantrights. of footing, equal exercise,an or enjoymenton recognition, prohibited grounds ofdiscrimination and which has the intention or effector impairing the ofnullifying treatment differential other or preference or restriction sion, See above, note 25, CESCR an equalfooting, ofallrights and freedoms” (emphasis added). on persons, exerciseall or byenjoymentrecognition, the impairing or nullifying of effect or purpose the religion, political or other opinion, national or social origin, property, birth or other status, and which has preference or restriction exclusion, any imply to understood be should Covenant the in used as “discrimination” term the that See above, note 43, HRC, CRPD, Article2. ICERD, Article1(1). CEDAW, Article1. See above, note 24,Principle5. tural, civil,family life orany other area (emphasisadded). groupa or thepersons in of areapolitics, economy, of social, cul exercisingor enjoyment and freedoms ofhumanrights to aperson jeopardising,hindering, aimed at oritising) preventing denyingor treatmentunequal failureor to treat(exclusion, restrictionpri or or differentiation unjustified any is discrimination Gender-based 2) 1) particular, if: undertaken measures, withinthe thisof meaning law, include in Unjustified distinction, exclusion, limitation and treatment or other aim to be achieved by such actions. aim; There isnoproportion theactions undertaken between andthe legitimate or lawful a by justified not is measureundertaken An 193 as well as the definitions adopted by the HRC General Comment No.18 , Para 7: which provides that “discrimination constitutes any 196 which is based on any ground such as race, colour, sex, language, sex, colour, race, as such ground any on based is which , Paras 6-7, which provide that “the Committee believes that is thatdirectly or indirectly basedonthe purpose 194 of conduct ratherof conduct andtheCESCR 191 distinction, exclu theICERD distinction, - - 195 192 ------

Forms of Discrimination in practice equality

The LGE prohibits a number of forms of discrimination, as required by international law, including: “direct discrimination” (Article 5), “indirect discrimina- oftion” the (Article workplace. 6), conduct amounting to victimisation (Article 4), and harassment (Article 10(6)). However,197 harassment is only expressly prohibited in the context or discrimination by The perception. LGE does not, however, define or prohibit denial of rea- framework relatedthe legal and policy to equality sonable accommodation, multiple198 discrimination, discrimination by association Scope of Application

Article 4 of the 199LGE defines the areas of life in which discrimination is prohibited broadly to include: “politics, economy, social, cultural, civil, family life or any other area”. The LGE specifically prohibits discrimination on the basis of gender in a number of areas of activity, including:200 201 202

Labour relations203 including: recruitment; promotion; dismissal; remuneration;204 Social care; 205 Health care; Educational and scientific institutions: and admission; expulsion; assess206 - Informationment; scholarships; released qualifications; by the mass media. professional207 training; promotion. Right to vote and to stand for election; 208 Positive Action

The LGE is unique among non-discrimination legislation in Serbia in that it imposes a large number of obligations on state and non-state actors to take

197 SeeWe referabove, to note the references 54, Article cited18. above with respect to the LPD regarding the forms of discrimination that are required to be prohibited under international human rights law and best practice. 198 199

See above, note 56, LGE, Article 4, which provides that “[g]ender-based discrimination is any unjustified todifferentiation a person or aor group unequal of persons treatment or failure to treat (exclusion, restriction or prioritizing) aimed at otherhindering, area jeopardizing, preventing or denying exercising or enjoyment of human rights and freedoms in the area of politics, economy, social, cultural, civil, family life or any 200 Ibid. ” (emphasis added). 201 Ibid., Article 15. 202 Ibid., Article 16. Ibid.

203 Ibid., Article 17. 204 Ibid., Article 23. 205 Ibid., Article 24. 206 Ibid., Article 30. 207 Ibid., Article 36. 208 , Article 41. 69 70 EQUAL RIGHTS TRUST 219 218 217 216 215 214 213 212 211 210 209 The positive actionmeasures imposedby theLGE includethefollowing: public scrutiny. duties, these of some complywith not do they if employersfined maythat be is significance lar effective. equality to right the make to order in groups” particular of equality towards progress accelerate (…) and disadvantage past overcome best practicenational which providesit isnecessary tothat take measures “to measures to advance gender equality. In this regard, the LGE is in line with inter 221 220

Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. gender representation when arranging for vocational training ortraining (Article19).” measures as referred to in Article 13, paragraph 2; (…) (8) It does not comply with the provisions on equal paragraph13, Article 1; in if: entity legal a of capacity the having employer(1) the to violation the for imposed be shall 100,000 to See, for example, rangingfromRSDfine 10,000 provide which “[a] (8), that and (2) 54(1), above,Article LGE,See 56, note See above, note 24,Principle3. It does not make a plan of measures for the provision of equal gender representation as referred toreferred as representation gender equal of provision the for measures of plan a make not does It , Article21. , Article19. , Article35. , Articles54(1)-(2). , Article35. , Article13. , Article12. , Article40. hi ngtaig committees; negotiating their employment; in employers with respect toin vocational persons participating training no been interpretationjudicial of thisterm to date. Suchadutyisimposed on: has there that indicate consultants legal Trust’s Rights Equal The representation. gender equal ensure to – efforts” “making of terms in expressed generally – obligation an impose provisions of number A to “makeDuty efforts” to ensure equalgenderrepresentation inpractice. National Assembly. the of Committee Equality Gender the to plans their submit haveto lors council or MPs as elected are candidates whose parties political dition, websites.official their on plans fine. their publish must tradeunions a in result can so do to failure and issues, toport onitsimplementation theministryincharge ofgender equality tradeand unions. plicable to employers with more than 50 employees, to createDuty aplanto promote equalgender representation. the state to collectDuty data that isdisaggregated by gender. 211 210 212 ibid. and certain dutiesinvolveand toof data publication the enable and“every employer”. , Article35. (2) It does not prepare an annual report on the implementation of the plan of plan the of implementation the reportprepareon not annual does an It (2) 220 216 unions andassociations of employers with respect to 219 Employers reannual and an the plan submit must 221 staterespect bodies with to persons 213 217 Politicalparties and This is applicable to This is applicable 214 political parties political 209 Ofparticu This is ap 218 Inad 215 ------

222 sports in practice equality the appoint nominated for positions in management in the public service;223 organisations with respect the to appointment their management of candidates bodies; for elections for- ment of candidates for224 the president of the Republic, members of parliament and councillors; and the election or appointment of delegations representing theall positions Republic225 inof theSerbia “public internationally. power authorities, It is not financial clear how and such other obliga insti- tionstutions”; are monitored in practice. The obligation226 on employers is the only

- framework relatedthe legal and policy to equality Duty to incorporate gender equality into school227 curricula and teaching materialsone that results in a fine due to non-compliance.

. andThe requiresLGE provides state that,bodies “[e]ducation to ensure thatabout “the gender policy equality of equal is an integral228 part of pre-school, primary, secondary and university edu- riculacation” and teaching materials.229 Dutyopportunities to promote for awareness women and of mengender is implemented”equality with respect to cur-

grams as well as undertake adequate measures .to The amend “mass social media” and arecultur required to “develop the awareness of gender-based equality in their pro- - Dutyal patterns to monitor (…) which judicial condition proceedings stereotypes, under the prejudices LGE. Courts and discrimination are obliged 230to based on the idea of inferiority and/or superiority of either of the sexes.”

forward all final decisions in cases of gender-based discrimination to the ministry in charge of gender equality issues, and the ministry is obliged231 to keep records of all final decisions on gender-based discrimination. the study. The enforcement mechanisms under the LGE are discussed in detail in Part 3 of 2.2.3 Non-Discrimination Provisions in Other Legal Fields

Civil Law

Annex 3 There are a large number of non-discrimination provisions or provisions guar- anteeing “equal rights” in various areas of civil law in Serbia. In , we

222 Ibid.

Ibid., Articles 14 and 32. 223 Ibid., Article 34. 224 Ibid., Article 37. 225 Ibid. 226 Ibid , Article 38. for the violation to the employer having the capacity of a legal entity if: [i]t does not comply with the pro 227 ., Article 54(8), which provides that “[a] fine ranging from RSD 10,000 to 100,000 shall be imposed - visionsIbid. on equal gender representation when arranging for vocational training or training (Article 19).” 228229 Ibid., Article 31. Ibid.

230 Ibid., Article 41. 231 , Article 51. 71 72 EQUAL RIGHTS TRUST 238 237 236 235 234 233 232 school education to high education, as well as in the disabilities. field of education of adults. anti-discrimination including provisions in laws on insurance, patients’ rights and on health protection of persons with and mental protection health care, In other civil laws, discrimination is specifically prohibited in the fields of health nation against nationalminoritiesisa“specialcase”ofdiscrimination the ground of “national affiliation or ethnic origin” origin” “national of ground minorities, tonational belonging persons of equality to right the guarantees (which Constitution the in provided that to supplementary is Minorities National Freedomsof and Rights the of Protection ers. The protection for the right to non-discrimination offered by the Law on the oth among language, own their use to member minority national a of right the abroad, and country the in minority their to belonging members other with ate co-oper to right the belongs, one which to minority national freelyexpressthe to right the as such rights, other many protects and non-discrimination to cific spe not is lawHowever, the minorities. national to belonging persons against 2003. in adopted was which ities minor national to belonging persons of rights the to relating law specific a is Minorities National of Freedoms and Rights the of Protection the on Law The this reason, we willnotanalyse theseprovisions indetail. For litigation. in laws anti-discrimination specific three the with combination 3 in listed and below most discussed guarantees, non-discrimination In the cases provisions. anti-discrimination containing laws civil of list a provide , reiterate the protection provided under the LPD and, in practice, are used in used are practice, in and, LPD the under providedprotection reiteratethe ,

tion, 97/2008, 44/2010, 93/2012, 89/2013, 99/2014, 45/2015 – auth. interpretation, 68/2015 and 87/2016. Law on High Education, “Official Gazette of the Republic of Serbia”, Nos. 76/2005, 100/2007 – auth. interpreta public of Serbia”, No. 55/13; Law on Education of Adults, “Official Gazette of the Republic of Serbia”, No. 55/13; “Official Gazette of the Republic of Serbia”, No. 55/13; Law on Secondary Education, “Official Gazette of the Re Education, Serbia”,Primary of Republicon Lawthe 18/2010; of GazetteNo. “Official Education, Preschool on 72/2009, Health, “OfficialGazette oftheRepublic ofSerbia”, No.15/16. Serbia”,Republicof the of Gazette “Official Patients’Rights, Public on Law on Law45/13; 45/13; No. No. law; Law on the Protection of Persons with Mental Disabilities, “Official Gazette of the Republic of Serbia”, of the CC, 119/2012 Gazette of the Republic of Serbia”, Nos. 107/2005, “Official Insurance, Health on law,Law other 106/15; – and 45/13 96/15 119/12, 93/14, 57/11, 99/10, Law on Health Protection, “Official Gazette of the Republic of Serbia”, Nos. 107/05, 72/09- other law, 88/10, equal legal protection.” provides to“[p]ersons belonging that minorities be guaranteed national shall beforeequality thelaw and minorities for the purpose of exercising full equality and preserving their identity”, and, Article 76, which “Official Gazette oftheRepublic ofSerbia”, Nos.72/2009and97/2013–decisionoftheCC. Charter; Constitutional the – Montenegro”,1/2003 and No. Serbia the of Gazette “Official 11/2002; No. Seeabove, note 54,Article2(1). See above, note 38, Article 14, which provides that the state shall guarantee “special protection to national SRY”,the of Gazette “Official Minorities, National of Freedoms and Rights the of Protection the on Law Law on Foundations of the Education System, “Official Gazette of the Republic of Serbia”, Nos. Nos. Serbia”, of Republic the of Gazette “Official System, Education the of Foundations on Law Ibid. Ibid. , Article24. , Article21. 52/2011, 237 Discrimination is prohibitedis Discrimination levelsall at fromeducation, of pre 55/2013, 35/2015 – auth. interpretation, 68/2015 and 62/2016 – decision of the CC; Law , 99/2014 , 123/2014 234 ) and the LPD (which prohibits discrimination on discrimination prohibits (which LPD the and ) , 232 126/2014 – decision of the CC, 106/2015 and 10/2016 – other Articles 1, 3 and 4 prohibit discrimination prohibit 4 and 3 1, Articles 109/2005 233 andprohibits discrimination on the – correction, 57/2011 235 andprovides discrimi that , 110/2012 236 ). – Annex decision 238 ------

equality in practice equality scribing detailed criteria for recognising discrimination in educational institu There are also several by-laws related to discrimination, such as by-laws pre- the enrolment of Roma students in high school for the purpose of achieving- fulltions, equality. and by-laws regulating the introduction of special measures to promote 239 Discrimination is prohibited in employment and labour relations under sev

- framework relatedthe legal and policy to equality oferal abuse specific at work. laws relating There is to also employment, a special law insurance on professional in the event rehabilitation of unemployment, labour 240relations, workplace health and safety, and the prevention crimination provisions and prescribes quotas for employment of persons with disabilities.and employment of persons with disabilities, which contains a set of anti-dis- reasonable 241accommodation. However, this 242does not provide an individual the right to claim criminationDiscrimination provisions is prohibited are provided in the areasin laws of regulating social security, state243 administration including housing and and social housing, pensions and disability insurance. In addition, anti-dis- tisinglocal government, laws. the security sector, access to goods and services, including consumer protection,244 as well as in media, public information and public adver- Furthermore, some anti-discrimination provisions are contained Rulebook on criteria and procedures for Roma student high school enrolment under more favourable con

239 Rulebook on criteria and procedures for high school enrolment under more favourable conditions for the- purposeditions for of theachieving purpose full of equality achieving of fullthose equality, students “Official who have Gazette completed of the Republic elementary of Serbia”, school No. education 12/2016; as

adults, “Official Gazette of the Republic of Serbia”, No. 42/2016; Rulebook on detailed criteria for detecting discrimination by staff members, children, students or third party in an educational institution, “Of- ficial Gazette of the Republic of Serbia”, No. 22/2016; Rulebook on the manner and procedure for giving expert assessment and providing expert opinion on the quality of draft textbooks, manuals and teaching materials, as well as approved teaching materials, teaching aids, didactical tool and didactical play tools, “Official Gazette of the Republic of Serbia”, No. 75/2016. 240 Labour Law, “Official Gazette of the Republic of Serbia”, Nos. 24/05, 61/05, 54/09, 32/2013, 75/2014 and 13/2017 – decision of the CC; Law on Employment and Insurance in Case of Unemployment, “Official Gazette of the Republic of Serbia”, Nos. 36/09, 88/2010 and 38/2015; Law on Prevention of Mobbing (Abuse at Work),“Official Gazette of the Republic of Serbia”, No. 36/2010; Law on Safety and Health at Work, “Official Gazette of the Republic of Serbia”, Nos. 101/05 and 91/15. 241 Law on Professional Rehabilitation and Employment of Persons with Disabilities, “Official Gazette of the Republic of Serbia”, Nos. 36/09 and 32/2013. 242 See above, note 12, p. 43. 243 Law on Social Protection, “Official Gazette of the Republic of Serbia”, No. 24/2011; Law on Housing and Maintenance of Buildings, “Official Gazette of the Republic of Serbia”, No. 104/2016; Law on Pension and Disability Insurance, “Official Gazette of the Republic of Serbia”, Nos. 34/2003, 64/2004 – decision of the CC, 84/2004 – other law, 85/2005, 101/2005 – other law, 63/2006 – decision of the CC, 5/2009, 107/2009, 101/2010, 93/2012, 62/2013, 108/2013, 75/2014 and 142/2014; Law on Contributions for Mandatory Social Insurance, “Official Gazette of the Republic of Serbia”, Nos. 84/2004, 61/2005, 62/2006, 5/2009, 52/2011, 101/2011, 7/2012 – adjusted amount in dinars, 8/2013 – adjusted amount in dinars, amount47/2013, in 108/2013,dinars. 6/2014 – adjusted amount in dinars, 57/2014, 68/2014 – other law, 5/2015 – adjusted amount in dinars, 112/2015, 5/2016 – adjusted amount in dinars and 7/2017 – adjusted

244 Law on State Administration, “Official Gazette of the Republic of Serbia”, Nos. 79/2005, 101/2007, 95/2010 and 99/2014; Law on Local Self-Government, “Official Gazette of the Republic of Serbia”, Nos. 129/2007, 83/2014 – other law and 101/2016 – other law; Law on the Serbian Army, “Official Gazette of the Republic of Serbia”, Nos. 116/2007, 88/2009, 101/2010 – other law, 10/2015 and 88/2015 – decision of the CC; Law on Defense, “Official Gazette of the Republic of Serbia”, No. 116/2007, 88/2009, 73 74 EQUAL RIGHTS TRUST 247 246 245 may bedealtwithundercriminallaw. Principle7oftheDeclaration states: discrimination of manifestations severe certain discrimination, from protection with as a matter of civil rather than criminal law. However, to offer comprehensive International best practice requires that, for the most part, discrimination be dealt Hate Motivated Violence has beensubsequently amendedseveral times. and 2005 in force into came It Serbia. in justice criminal regulating instrument legal main the is Code) (Criminal Serbia of Republic the of Code Criminal The Criminal Law munities. com religious and churchesality, minorities, national immigration, citizenship, in laws regulating public gathering and association, culture, sport, youth, nation

520, 820 – orcin 1720 – orcin 7/09 1120, 2/02 104/2013, 121/2012, 111/2009, 72/2009, correction,108/2014 and94/2016. – 107/2005 correction, – 88/2005 85/2005, Serbia”, Nos.16/2002, 115/2005and107/2009. Assistance Financial on Law 94/2016; No. Serbia”, No 36/2006; Law on Prevention of Domestic Violence, “Official Gazette of the Republic of Serbia”, Law 55/2014; and CC the of decision – 20/2014 Serbia”,72/2009, of Nos. Republic the of Gazette “Official Councils, Minority National on Law 107/2012; Serbia”,No. of Republic the of Gazette “Official Management, Migration on of Republic the of Serbia”,Gazette L 109/2007; No. “Official Asylum, on Law 90/2007; and 135/2004 Serbia”,Nos. of Republic Serbia, of Republic the of Citizenship on Law Serbia”,50/11; Republic No. the of law, 90/2007, 72/2009 – other law, 111/2009 and 104/2013 – other law; Law on Youth, “Official Gazette Sports at Behavior “Official Gazette of the Republic of Serbia”, No. 10/2016; Law on Prevention of Violence and Inappropriate GazetteRepublicthe cial of Serbia”,of correction;– 30/2016 and 13/2016 72/2009, Nos. Law Sports, on “Official Gazette of the Republic of Serbia”, Nos. 51/2009 and 99/2011 – other law; Law tance, “OfficialGazette oftheRepublic ofSerbia”, Nos.120/2004,54/2007,104/2009and36/2010. 44/2010, 60/2013 – decision of the CC and 62/2014; Law on Free Access to Information of Public Impor Serbia”,E Lawon 6/2016; No. A on Law 108/2016; and 103/2015 83/2014, bia”,Nos. Ser of Republic the of Gazette “Official Media, Service Public on Law law; other – 6/2016 and 83/2014 12/2016 – auth. interpretation; Law on Electronic Media, and “Official Gazette of the Republic 58/2015 of Serbia”,83/2014, Serbia”, Nos. Nos. of Republic the of Gazette “Official Media, and on Information Law Public 139/2014; Serbia”,No. of Republic the of Gazette “Official law,Insurance law; other – 6/2016 and Serbia”,62/2014 of Nos. Republic the of Gazette “Official Protection, Consumer on Law Serbia”,145/2014; No. of Republic the of Gazette “Official Energy, on Law 95/2013; and 41/2009 Serbia”,RepublicNos. of the of Gazette “Official Commerce, Electronic on Law 10/2013; and 53/2010 Serbia”,Nos. of L 112/15; Serbia”,No. of Republic the of Gazette “Official Disasters, Other and Natural after Reconstruction on Law 93/2012; and 92/2011 111/2009, bia”,Nos. Ser of Republic the of Gazette “Official Situations, Emergency on Law 17/2013; and CC the - of decision 55/2012 88/2009, Serbia”,Nos. of Republic the of Gazette “Official Agency, Intelligence Military and Agency Security Military on Law 66/2014; and CC the of decision – 65/2014 111/2009, 42/2002, Nos. Serbia”,of Republic the of Gazette Agency,Security-Information“Official on LawSerbia”, 6/2016; of No. 88/2009 – other law, 104/2009 – other law and 10/2015; Law on Police, “Official Gazette of the Republic Criminal Code of the Republic of Serbia (Criminal Code), “Official Gazette of the Republic of Serbia”,of Republic the of Gazette “Official Code), Nos. (Criminal Serbia of Republic the of Code Criminal Family Law, “OfficialGazette oftheRepublic ofSerbia”, Nos.18/2005,72/2011 and6/2015. Associations, on Serbia”,Law 6/2016; of RepublicNo. the of Gazette “Official Gatherings, Public on Law or in part bypart in or the characteristica having victim statusor associated Any actofviolence orincitementto violence that ismotivated wholly 245 Finally, discriminationisprohibited infamily law legislation. Events, “Official Gazette of the Republic of Serbia”, Nos. 67/2003, 101/2005 – other – 101/2005 Serbia”,67/2003, of Nos. Republic the of Gazette “Official Events, on the on aw on Foreigners lectronic Communications Churches and Religious Communities, “Official Gazette of the Republic of Republic the of Gazette “Official Communities, Religious and Churches , “Official Gazette of the Republic of Serbia”,of Republic the of LawGazette 97/2008; “Official No. , to Families with Children, with Families , “Official Gazette of the Republic of Serbia”,Republicof the of Gazette “Official , Nos. dvertising aw on Trade 247 , “Official Gazette of the Republic of Republic the of Gazette “Official , “ Official Gazette of the Republic of Republic the of Gazette Official , “Official Gazette of the Republic the of Gazette “Official , “Official Gazette of the of Gazette “Official on Culture, 246 “Offi ------with a prohibited ground constitutes a serious denial of the right to in practice equality equality. Such motivation must be treated as an aggravating factor in the commission of offences of violence and incitement to violence, and States must take all appropriate action to penalise, prevent and deter such acts. 248 action to protect individuals from violence at the hands of public or private actors.

UnderThis includes international “respond[ing] human appropriately rights law, states to patterns are obliged of violence to take against appropriate catego framework relatedthe legal and policy to equality

States are required- riesto prevent of victims”, and prosecutesuch as violence such acts. against Individuals human rights whose defenders, rights249 have women, been children, violated persons with disabilities, and sexual250 and gender minorities. 251 are entitled to an effective remedy under Article 2(3) ICCPR. To this end, states252 Violenceshould “take committed account againstof the special an individual vulnerability on account of certain of their categories actual ofor person”.perceived personalcases may characteristics, differ from that or totheir be associationtaken in relation with a toprotected similar casesperson committed or group, iswithout a particularly a discriminatory serious form motive. of discrimination, and appropriate action in such 253 violence must be considered an aggravating For example, factor in duringorder to sentencing. give full effect to the principle of equality, a discriminatory motive in the incitement or commission254 of The Criminal Code in Serbia provides strong protection against hate motivated violence.criminal offence.In 2012, It Articleprovides: 54a was inserted into the Criminal Code to provide that discrimination on certain specified grounds is an aggravating factor for a If a criminal offence is committed from hate based on race or religion, national or ethnic affiliation, sex, sexual orientation or gender identity of another, the court shall consider such circumstance as aggravating except when it [i.e. hatred] is stipulated as a feature of the criminal offence. 255

248 See above,General note Comment 24, Principle No. 35: 7. Liberty and Security of Person 249 Ibid.HRC, , UN Doc. CCPR/C/GC/35, 2014, Para 9. 250 251 ICCPR, ArticleGeneral 2(3)(a). Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 252 See: HRC, General Comment No. 3: Implementation of Article 14 by States Parties UN Doc. CCPR/C/21/Rev.1/Add. 13, 2004, Para 15; Committee against Torture (CAT pecialCommittee), measures should be adopted to ensure access by persons belonging to groups, UN Doc. who CAT/C/GC/3, have been 2012, Para 29, whereby the CAT Committee recognised that in order to access redress mechanisms, “[s]

marginalised or made vulnerable.”Identoba and Others v Georgia 253 See, for example: ECtHR, , Application No. 73235/12, 12 May 2015, Para 67, whereby the ECtHR recognised that “treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights.” 254 See above, note 24, Principle 7. 255 Criminal Code, Article 54a (as amended by “Official Gazette of the Republic of Serbia”, No. 121/2012). 75 76 EQUAL RIGHTS TRUST 258 257 256 of sentences jail with punishable discrimination, and violence hatred, to ment incite criminalise that provisions of number a contains Code Criminal Serbia’s extent oftheimpact ontargeted personsandgroups.” law,bycriminal than other means natureinterthe alia, and intotaking account, addressed be should cases serious less while provendoubt, beyondreasonable be to cases, serious reservedfor be should expressionracist of forms of isation criminal “the that, stated has it expression; of criminalisation the for standard high a is there that indicated has CERD the ICERD, 4(a) Article to respect With bility of harm occurring”, and the “imminence of the acts called for by the speech”. the speaker to incite discrimination, hostility or violence”, the “likelihood or proba criminalised. be (CSO), organisation adopted to determine thecircumstances inwhich incitement to society hatred shouldbe civil international an 19, ARTICLE by developed test, threshold” “seven-part a that recommended has Rapporteur Special UN The ion andExpression hasexpressly commented that: Opin Freedomof on Rapporteur Special UN the ICCPR, 20(2) Article torespect statesthat usecriminallaws to prohibit thespeech referred to therein. With Neither Article 20(2) ICCPR, nor Article 4(a) ICERD, nor the Declaration requires violence, aswell ashate-motivated violence. tional best practice requires states to “penalise, prevent and deter” incitement to Interna discrimination. and violence hatred, to incitement to respect with law In Part 2.2.2, we discussed Serbia’s obligations under international human rights Incitement to Hatred human rights law, includingdisabilityandage. international under discrimination of grounds well-recognisedseveral include not does provision the that noted however,is welcomed; it be to is 54a Article The large numberofprohibited grounds ofdiscrimination expressly includedin 260 259

Ibid. Ibid. See above, note 110,CERD, See above, note 36,Para 47. See above, note 24,Principle7. , Para 45. should becriminalised. incitement to hatred, which would cross the seven-part threshold, Rapporteurunderscores that onlyseriousandextreme instances of there isnorequirement to criminalisesuch expression. TheSpecial orviolence underarticlecrimination, hostility 20(2)ofthe Covenant, national, racial orreligious hatred that constitutes incitement to dis States[W]hile are required to prohibit by anylaw advocacy of 258 The factors included in the seven-part test include: the “intent of of “intent the include: test seven-part the in included factors The

Para 12. 257 256 260 - 259 - - - - - equality in practice equality to the imminence of the harm or the intention of the perpetrator. The broad natureup to eight of several years. criminal In general, prohibitions the provisions means are they broad fall inshort nature of the and requirements do not refer of international law. For example, Article 317(1) of the Criminal Code provides that, “[w]hoever instigates or exacerbates national, racial or religious hatred or intolerance among the peoples and ethnic communities living in Serbia, shall be

punished by imprisonment of six months to five years.” Similar concerns arise in framework relatedthe legal and policy to equality relation to Article 387 of the Criminal Code which criminalises a range of forms of expression, including the propagation of “racial intolerance”261 and “racial dis- Criminalisationcrimination” (without of Discrimination a requirement that violence is incited).

International best practice requires that, for the most part, discrimination be dealt with as a matter of civil rather than criminal law. However, as indicated above, the exceptions to this principle are certain severe manifestations of discrimination, such as discriminatory violence and incitement to discriminatory violence (albeit that criminalisation of the latter is subject to the permissible Severallimitations provisions on the right of the to Criminal freedom Code of expression). criminalise acts amounting to discrimi nation which extend well beyond these severe manifestations of discrimination. -

For example, Article 128 criminalises the act of “den[ying] or restrict[ing] the right of man and citizen guaranteed by the Constitution, laws or other legislation or general acts or ratified international treaties” on a number of expressly prohibited grounds of discrimination as well as “other personal characteristic”. The offence is punishable by up to three years’ imprisonment and up to five years’ imprisonment if committed by a public official. Article 387(1) is a similarly guaranteedbroad offence by provision,universally criminalising accepted rules the of violation, international on grounds law and related international to the victim’s personal characteristics, of “fundamental human rights and freedoms

Thesetreaties”, provisions with a penalty are inconsistent of up to five with years’ international imprisonment. best practice. There are a number of reasons why, with the exception of severe manifestations of discrimi- Internationalnation, it is necessary law and to treat best discrimination practice provide as a civil that rather discrimination than criminal does matter. not 262 263 require intent or malicious motive on the part of the discriminator. By contrast, with the exception of strict liability offences (themselves controversial), criminal

261 Criminal Code, Article 387(3).Broeks v the Netherlands Simunek v Czech Republic 262 See, for example: HRC, D.H., Communicationand Others v Czech No. Republic 172/1984, UN Doc. CCPR/C/OP/2, 1987, Paras 8.4 and 16; HRC, , Communication No. 516/1992, UN Doc. CCPR/ C/54/D/516/1992, 1995, Para 11.7; ECtHR, , Application No. 57325/00, 13 November 2007, Para 184. 263 See above, note 24, Principle 5. 77 78 EQUAL RIGHTS TRUST 266 265 264 ity andnon-discrimination: equal to rightsstrategies keythe relatedtwotonational has Serbia present, At 2.3 which isparticularly inappropriate inthecontextoffenceof criminal provisions. and difficult compliance makes which treaties” international and law national nal liability on ill-defined standardscrimi such as “universallypremise accepted rules of inter also Code Criminal the of 387 and 128 Articles that noted is It rather thanthrough thepunitive remedies available inthecriminallaw. Finally, this aim is better achieved throughof the application civil law remedies, the caseof proof, of den bur the of transfer the notably including proof, and evidence to relating rules specific of adoption the necessitates law equality of functioning effective The contravention for potentially penalties intheabsenceofintention, isdisproportionate andunjustified. impose to and intention, require not does law civil law generally only punishesintentional acts. 267 2(3) ICCPR and Article 13 ECHR, as well as Principle 18 of the Declaration. the of 18 Principle as well as ECHR, 13 Article and ICCPR 2(3) Article “effectivein remedy”an to right the in reflected is This responsible. party the for punishment or sanction than rather discrimination, of victim the for edy The focus ofremedies andsanctionsinequalitylaw isonproviding effective rem inappropriate response. criminal sanctions while applying these rules of evidence and proof would bean apply study.to Again,the of Three Part in discussed is This doubt). reasonable ance of probabilities) rather than the higher criminal standard of proof (beyond

have aright to seeklegal redress andaneffective remedy.” the on resting as authorities, ortheotherrespondent, respectively.”regarded be should proof of burden the respondent, other or authorities the of edge 40, Para CESCR, 25, note which above,provides that “where the see facts and events 10; at issue lie wholly,Para or 2002, in part, within the exclusiveA/57/44, knowl Doc. UN 185/2001, No. Communication crime a for punishment for within the liable jurisdiction of the Court and only if the materialresponsible elements are committedcriminally with intent and knowledge.”be shall person a provided, otherwise less See, for example: Rome Statute of the International Criminal Court, Article 30(1), which provides that “[u[n IACtHR, See above, note 24, Principle 18, which provides that “persons who have been subjected to discrimination Sweden,v Karoui Para CATAhmed ECtHR, 177; Ben above,263, example, Chedi See fornoteCommittee, National Policies resulting from the actsofthe States responsible. protectthe victimsandto provide for the reparationdamages of punish those individuals who ofviolations,butrather are guilty to The objectiveaction. ofinternationallaw is notto humanrights Statesappear before donot the Court as defendants a criminal in Velasquez Rodriguez vHonduras Velasquez Rodriguez 265 and requires the application of the civil standard of proof (bal proof of standard civil the of application the requires and , theIACtHR provided thefollowing explanation: , CaseSeriesC,No. 4,29July 1988,Para 134. 264 To criminalise conductthatunder 267 266 In In ------ in practice equality and its associated Action Plan for The Strategy of Prevention and Protection268 Against Discrimination 2013- 2018 (Anti-Discrimination Strategy),and the Implementation of the Anti-Discrimination269 Strategy 2014-2018(An- ti-Discrimination Action Plan); The National Strategy for Gender Equality 2016-2020 (Gender Equality Strategy), and its associated Action Plan for the Implementation of270 the

Gender Equality Strategy 2016-2018 (Gender Equality Action Plan). framework relatedthe legal and policy to equality

Serbia has also adopted strategies to address discrimination in particular fields (e.g. security sector, education, social protection) and for different marginal- rightised groups to equality. (e.g. Roma,A complete violence list ofagainst current women). strategies Each is strategycontained contains in Annex special 4. measures for the advancement of marginalised groups and fulfilment of their that a number of issues have arisen with respect to the implementation of such We will not consider the implementation of these strategies in detail, but note strategies, including: the absence of an associated action plan (as in the case of the Ageing Strategy 2006–2015); inadequate funding; failure to adopt a new strategy once the time period has expired (for example, no further Ageing Strat- egy has been adopted since 2015); and overlap between different strategies.

The Anti-Discrimination Strategy is a very comprehensive document which the policygovernment measures adopted and instrumentsupon the recommendation which must be ofimplemented the Commissioner in order in to 2011, reduce in order to fulfil Serbia’s international obligations in this area. It provides for public discrimination and advance equality in Serbia. The Anti-Discrimination Strategy refers to measures needed to advance the right to equality of all persons; however, it focuses in particular on improvement of nine groups who are identified as particularly vulnerable to discrimination, namely: women; persons with disabilities; older people; children; members of the LGBTI community; national minorities; refugees, IDPs and other migrant groups; people whose health condition271 may be the ground for discrimination; and members of religious communities.

The Anti-Discrimination Action Plan was adopted for the period 2014–2018. resourcesIt prescribes for specificimplementation. measures and actions necessary for the realisation of the Anti-Discrimination Strategy, and specifies deadlines, responsible entities and

The Gender Equality Strategy and the Gender Equality Action Plan were adopted after the evaluation of the National Action Plan for the Advancement of Women

268 The Strategy of Prevention and Protection Against Discrimination 2013–2018, “Official Gazette of the Republic of Serbia”, No. 60/2013. 269 Action Plan for the Implementation of the Anti-Discrimination Strategy 2014–2018, “Official Gazette of the Republic of Serbia”, No. 107/2014. 270 Action Plan for the Implementation of the Gender Equality Strategy 2016–2018, “Official Gazette of the Republic of Serbia”, No. 4/2016. 271 See above, note 269, p. 14. 79 80 EQUAL RIGHTS TRUST 274 273 272 Anti-Dis crimination Strategy andGenderEquality Strategy, the asfollows: to respect with progress Serbia’s report, assessed latest prEUgovor its Coalition In acquis. the of Security) and Freedom (Justice, 24 Chapter and Rights) Fundamental and (Judiciary 23 Chapter to related Serbia by icies Coalition prEUgovor was formed inorder to monitorof pol theimplementation relation to Serbia’s accession to the EU. In 2013, a coalition of seven CSOs called in particularly Serbia, in policies different of implementation the monitor CSOs tus, educationstatus,and/orexperience ofdomesticviolence. sta employment age, ethnicity,(rural/urban),living their disability,of as place such grounds on based discrimination, intersectional and multiple experience EqualityGender Strategy focusesalso improvingon womenof position the who apply systematic integration of gender mainstreaming indecision The making. to and women; of status to improvethe and men patterns; and women of equality gender increase traditional change and equality gender of culture a mote pro toobjectives: strategic main three identifies Strategy Equality Gender The its modestimpact. to contributed which activities, the of management and coordination effective ing of all relevant laws, the lack of subsidiary laws, and the lack of consistent and of shortcomings in its implementation, including the lack of gender mainstream 2010–2015. Equality Gender of Promotion and

vial a: https://www.womenngo.org.rs/images/vesti-17/PDF/Na_ENG/preugovor-20171014- alarm-en-web.pdf. at: available (eds), M. Aleksić, Gender_Equality/Gender-Analysis-Serbia-dec-2016.pdf M., Dokmanović, andtheCoordinationUnit, Body for theGenderEquality in2015. The evaluation was conducted by the UN Women Office in Serbia, Social Inclusion and Poverty Reduction mentation in2016. the Strategy] [GenderEquality andthe Action Planfor itsimple publicly available reporttheon implementation measuresof from not given their consent to the second draft ofthe Law. There isno hasnotyetEquality beenadopted, because ministries the have two Law on the Prohibition ofDiscrimination. Thenew Law on Gender data about the consultation process regarding amendments to the available publicly no is There fulfilment. the on data no are there Action Plan] have beenimplemented, andfor aquarter ofactivities Less than ahalfofthe measures listed inthe[Anti-Discrimination Gender AnalysisGender for Serbia: FinalReport prEUgovor Alarm: Report onthe progress ofSerbia inChaptersand 24 23 273 274 . 21, vial at: available 2016, , 272 Theevaluationrevealed alot http://europa.rs/files// , 2017, p. 11, p. 2017, , ------3. ENFORCEMENT AND IMPLEMENTATION OF SERBIA’S EQUALITY LAWS

Comprehensive equality laws are the first step in the protection of the rights to effectiveequality andremedies non-discrimination. and ensure enforcement Effective protection of equality of theselaws byrights, independent however, anddemands competent much bodies.more. States A sophisticated are required regime to facilitate of legal andaccess practical to justice, measures provide is required to do this, comprising: technical legal provisions to facilitate access to justice; appropriate powers and independence of enforcement bodies; legal aid funding; efficient and accessible courts; public education campaigns; and training of the judiciary. In the absence of such measures, discrimination and inequality will persist, regardless of the strength of a state’s equality laws. that are necessary to ensure that its equality laws provide effective protection inIn practice.this Part, We we draw analyse upon the interviews extent to andwhich focus Serbia groups has conducted adopted the with measures victims of discrimination, civil society organisations (CSOs), state bodies, private sector organisations, equality experts and the current Commissioner for the Protection of Equality (Commissioner). legal mechanisms

WhatOur findings is missing indicate are the that, practical overall, measures Serbia has to enablein place individuals the key to enforce their necessary to facilitate access to justice, effective remedies and enforcement. orrights. unwilling There tois aseek widespread legal redress lack of due public to the awareness cost of proceedingsof the existence and of a Serbia’s lack of equality laws amongst both individuals and duty-bearers. Individuals are unable confidence in the judiciary as an efficient and independent form of redress. To delaysensure andthat restore its equality public laws faith provide in the protectionindependence in practice, of the judiciary. Serbia needs to take measures to increase public awareness, adequately fund legal aid, address court

3.1 Access to Justice discrimination are able to seek legal redress for violations of these rights through Fulfilment of the rights to equality and non-discrimination requires that victims of requires a combination of both legal and practical measures. The legal measures judicial, administrative or specialised equality bodies. Effective access to justice include provisions governing causes of action, jurisdiction, rules of evidence accessand standing, to appropriate among others.legal aid The funding practical and measuresphysical access include to courtpublic buildings. education to ensure that individuals understand their rights and the avenues for legal redress, 81 82 EQUAL RIGHTS TRUST the ConstitutionalCourt allegingviolationoftheir human rights asguaran in petition a file mayrepresentative, their or person, natural or legal a First, ity andnon-discrimination,asprotected inArticle 21oftheConstitution. There are two mechanismsby whichperson may a enforce theirrights to equal fied intheConstitution.Itprovides: guarantees22 oftheConstitution Article protectionjudicial the ofrights speci pendent complaintsmechanismconducted by theCommissioner. inde an for provides also (LPD) Discrimination of Prohibition the on Law The non-discrimination. to right the of violations for proceedings judicial initiate to action Serbia’slawsprovideof and anti-discrimination causes Constitution The Causes ofAction andRules ofStanding 3.1.1 discrimination, asfollows: emphasised the need for equal access to institutions dealingwithallegations of similarly has (CESCR) Rights Cultural and Social Economic, on Committee The tion): Accor 1 in economic, socialandcultural rights Committee on Economic, Social and Cultural Rights (CESCR), ding to Principle 18 of the Declaration of Principles on Equality (Declara Equality on Principles of Declaration the of 18 Principle to ding Legal Framework access to judicialand/orad seeklegal redresseffective andan remedy. havemust They effective Persons who have beensubjected to discriminationhaveto aright tect their freedoms andrightsguaranteed by the Constitution. have theto right address internationalin order institutions to pro consequencesnation of from arising the violation.Thecitizens shall have beenviolated ordenied, they shall also have the to right elimi guaranteed rights their byminority human or theConstitution shall have theEveryone to right judicialprotectionwhen any of be accessible to withoutdiscrimination everyone and/or ombudspersons, institutions rights human include courts andtribunals,administrative authorities, national dealing withInstitutions allegations ofdiscriminationcustomarily to equality. representation ofvictims,to the effective enforce undue obstacles, including financial obstacles or restrictions on the priate legal aid for this purpose.States mustnotcreate orpermit , UNDoc.E/C.12/GC/20, 2009,Para 40(emphasisadded). ministrative procedures, andappro General Comment No.20:Non-discrimination ment ofthe right which should . 1 ------teed by the Constitution.2 in practice equality state and other authorities Additionally, in charge of athe constitutional monitoring andappeal exercise can be of filed human on andbehalf minority of such rights persons, and freedoms.with written A petition authorisation, may relate by otherto acts natural of a state person, body 3 “violate or deny human or minority rights and freedoms guaranteed by the or “organisations The exercising right to initiatedelegated a constitutional public powers” appeal on the is basissubject that to they the exhaustion of 4other legal remedies if they are available. 5 Constitution.” enforcement and implementation of Serbia’s laws equality However, this requirement will be waived “in the6 event of a breach of an applicant’s right to a trial within a reasonable time.” including 7 8 tionalitySecondly, of“[a]ny a law legal that oris allegednatural toperson” be inconsistent or an authorised with rights proposer, protected in the the Commissioner, may apply to the Constitutional Court to assess the9 constitu-

Constitution, including the rights to equality and non-discrimination. Table 2ASerbia’s in Part three Two specific of the study. anti-discriminations laws each specify mechanisms for legal redress for violation of the right to non-discrimination, as outlined in The LPD10 provides a broad cause of action to initiate judicial proceedings 11 The right to commence proceed ings is not limited to violations of particular provisions of the Act and would in relation to “discriminatory treatment”. - of the LPD. As outlined in Table 2A protectionappear to include against all various forms formsof discrimination of discrimination defined including in Parts directTwo and discrimi Three of Part Two of this study, the LPD provides - nation, indirect discrimination and harassment. It provides protection from cialdiscrimination proceedings by may association, be initiated discrimination by “anyone who by has perception, suffered discriminatory multiple discrimination and victimisation. The rules on standing are similarly broad; judi-

“engagedtreatment” in and,the protection with the exception of human of rights proceedings or the rights in which of a compensationcertain group is sought, may12 also be initiated by the Commissioner or by an organisation of people.” If the matter concerns discrimination against an individual, the

2 Law on the Constitutional Court, “Official Gazette of the Republic of Serbia”, Nos. 109/2017, 99/2011, 18/2013Ibid. – decision of the CC, 103/2015 40/2015 – other law and 103/2015, Article 83, Para 1. 3 , Article 83, Para 2. 4 Ibid.Constitution of the Republic of Serbia 2006, Article 170. 5 , Article 82. 6 This requirement was amended by the Law on the Constitutional Court: see above, note 2, Article 82. 7 See above, note 4, Article 168. 8 See above, note 2, Article 50. 910 See above, note 4, Article 168. 11 Ibid.Law on the Prohibition on Discrimination (LPD), “Official Gazette of the Republic of Serbia”, No. 22/2009. 12 Ibid., Article 41. , Article 46. 83 84 EQUAL RIGHTS TRUST 20 19 18 17 16 15 14 13 person on behalfof an individual withtheir consent. another or rights” human protectionof the in organisation“engaged byan filed complaint. a file to right the has against” criminated arelodging acomplaint broad. Anindividual who “considers him/herself dis which isconducted by theCommissioner.respectwith The rulesofstanding to mechanism forplaints investigationadjudication ofviolationstheActand com independent providesan also LPD the proceedings, judicial to addition In tions are notallowed to bringcasesofdiscriminationonbehalf of individuals. workingrelations disability.a of thepersonwith onlybut dueto discrimination occurredthat in relation to theemployment and son maywith adisability initiate proceedings if they are discriminated against affected person and their legal representative. an to limited is proceedings legal initiate to right The laws. anti-discrimination (LPDPD) Disabilities with Persons against ination The rules of standing are narrower under the Law onthePrevention of Discrim to joinastheintervening partyoraco-plaintiff. tradethe initiated unionsandassociationsabout proceedingsinvite and them affected, possibly persons manner,other adequate another or media mass the initiation of the proceedings, trade unions and associations may inform, through consent. their with person, a of behalf on equality” gender of motion son” and by a trade union or association “whose objectives are related to the pro arerules ofstanding similarlybroad: proceedings mayinitiated be by “any per of action without specifying the provisions of the LGE upon which they rely. The cause broad this however,relyingLGE;upon persons the of practice no is there provisionsparticular of of violations tolimited not is action of cause this Again, sex.” certain of member a is he/she because violated been have freedoms or Gender on Law the as known (LGE), also Equality Sexes, the Between Equality on Law The individual to commenceproceedings. Commissioner or suchanorganisation mustobtainthewritten consentofan 22 21

Ibid. Ibid. Ibid. the Republic ofSerbia”, Nos.33/2006and13/2016. Ibid. Ibid. Ibid. the Republic ofSerbia”, No.104/2009. Ibid. See above, note 10,Article35. of Gazette “Official (LPDPD), Disabilities with Persons against Discrimination of Prevention the on Law Law on Equality Between the Sexes, also known as the Law on Gender Equality (LGE), “Official Gazette of , Article43,Paras 2–4. , Article43(2). , Article43(1). , Article42,Para 3. , Article42,Para 2. 14 provides broad a to causeofaction “anyperson whose rights 13 19 17 Apersonalassistantof a per 20 18 Organisationsassocia and than under thetwo than other 21 22 A complaint may Acomplaint alsobe Unlike judicialproceed 16 After the 15 ------

equality in practice equality

23 ings, there is no fee associated with filing a complaint and, in the majority of makingcases, individuals a complaint participate about their in the rights complaints and legal mechanism mechanisms without for protection. a lawyer. In addition, the Commissioner is required to provide information to an individual24

The Commissioner may also provide assistance in the drafting of a complaint, in exceptional circumstances, if a person makes25 a complaint orally and is unable or

Theredoes not is awant very to structured file a written process complaint. by which the Commissioner must investigate enforcement and implementation of Serbia’s laws equality complaints and make a determination. This was designed to ensure the timely 26 therresolution action of due allegations, to lack of meritwhile affording and must the take alleged no further perpetrator action ifprocedural legal proceed fair- ingsness. have On receiving been initiated a complaint, or an enforceable27 the Commissioner decision may has determinebeen passed. to take no fur- 28 - alleged perpetrator.29 The alleged perpetrator has the right to make a statementWithin 15 days of receiving an eligible Thecomplaint, Commissioner the Commissioner must then mustestablish forward the itfacts to the of the case by reviewing the30 evidence submitted and taking statements from the complainantwithin a further and 15other days. relevant persons. 31 aWithin violation 90 daysof the of LPD. receiving the complaint, the Commissioner must conclude its fact-finding process,32 and provide an “opinion” on whether there has been If the Commissioner finds that there has been a violation, it must include a recommendation33 to the perpetrator “suggesting a way of Theredressing LPD also the emphasises violation in the question”. need to consider alternative dispute resolution in missioner may propose to the parties that they consider resolving their dispute viadiscrimination mediation. matters. Prior to concluding the fact-finding process, the Com- 34

Ibid.

23 Ibid. 24 Ibid., Article 33(2). orally for the record 25 , Article 35(1), which provides that a person may lodge a complaint in writing or “under exceptional circumstances,Ibid. ” (emphasis added). 26 Ibid., Articles 35–40. 27 Ibid., Article 36. 2829 Ibid. Ibid., Article 35. 30 Ibid., Article 37. 31 Ibid. 32 Ibid., Article 39. 33 Ibid. 34 , Article 38. 85 86 EQUAL RIGHTS TRUST 38 37 36 35 pro initiate to choose may claimant the justice; to access promote to jurisdiction on rule special a contain each Serbia in laws anti-discrimination specific three The Jurisdiction of theburden ofproof however. to theshifting of the burden of proof. In Serbia, the LPD and the LGE are consistent with international law with respect Rights (ECtHR) the Elimination of Racial Discrimination (CERD), crimination proceedings has been recognised by the CESCR, case that discrimination has occurred. The reversal of the burden of proof in dis a established has plaintiff the once defendant, the transferredto be International law requires that theburden of proof in cases of discrimination Principle 21oftheDeclaration provides: on evidence andproof are adapted to ensureredress.victims canobtain that person toa provediscrimination has occurred. that requires It legal that rules fordifficult laws. anti-discrimination be Internationalcan lawrecognises it that enforce successfully to ability person’s a on impact significant a have can ings Proceduralrules regarding theburden ofproof in discrimination proceed Burden ofProof 39

(recast), Article19. treatmentopportunities andequal equal of men andwomen inmatters of employment andoccupation of principle the of implementation the on 2006 July 5 of Council the of and Parliament European the of Directiveand 2006/54/EC 9; Article services, and goods of supply and to access the in women and men between treatment equal of principle the implementing 2004 December 13 of 2004/113/EC Directive Council es 10; Article occupation, 2000 and Novemberemployment in treatment27 equal for of framework general a 2000/78/EC tablishing Directive Council 8; Article origin, ethnic or racial of gardless December 2005,Para 39. 43579/98, 6 July 2005, Para 147; ECtHR, No. 30:Discriminationagainst Non-citizens Ibid. be should proof regarded asresting ontheauthorities, ortheotherreof burden the respondent, other or authorities the of knowledge exclusive the within See above, note 10,Article45,Para 2;seeabove, note 14,Article49. re treatment equal of principle the implementing 2000 June 29 of 2000/43/EC Directive Council See: European Court of Human Rights (ECtHR), See above, note 1, Para 15, which provides that “[w]here the facts and events at issue lie wholly, or in part, , Para 40; Committee on the Elimination of Racial Discrimination (CERD), Discrimination Racial of Elimination the on Committee 40; Para , to prove that there hasbeennobreach ofthe rightto equality. been discrimination(prima facie case), itshallbefor the respondent tent authority, facts from which itmaybepresumed that there has subjected to discriminationestablish, before acourt orother compe adaptedto en redress. Inparticular, the rules onproof incivilproceedings shouldbe that victimsofdiscriminationare notundu Legal rules related to evidence andproof mustbeadapt 37 , andinallEUanti-discrimi surethat when whopersons allege that they have been Timishev vRussia Nachova andOthersv Bulgaria , UNDoc.CERD/C/64/Misc.11/rev.3, 2004,Para 24. 39 The LPDPD does notprescribe a shifting spondent, respectively.”spondent, nation Directives. , Application Nos. 55762/00 and 55974/00, 13 36 ly inhibited inobtaining the European Court of Human , Application Nos. 43577/98 and 35 ed to ensure General Recommendation theCommittee on 38 a facie prima ------

equality in practice equality This is an exception to the usual rules ceedings in a court with jurisdiction over either40 the claimant or the defendant’s place of residence, whichever is more convenient. 41 on jurisdiction in Serbia which are based on the defendant’s place of residence.

Inthe general, legal framework with the exceptionto facilitate of access the absence to justice of legal in Serbia provision is strong for financialand consistent aid to enable individuals to access courts (which is discussed further in Part 3.1.2 below), enforcement and implementation of Serbia’s laws equality with international best practice, like Serbia’s equality laws themselves. There are enforceable causes of action and the rules of standing are broad. However, as out- 3.1.2lined below,Practical there Barriers are significant practical barriers that impede access to justice.

Despitein practice the is excellent seriously legal impeded provisions by three on keystanding, factors: burden many ofindividuals proof and in juris Ser- diction outlined above, access to justice for victims of discrimination in Serbia - biaphysically are unaware accessing of their courts. rights to equality and non-discrimination; they cannot afford to seek legal redress when violations occur; and they have difficulties in Public Awareness

Research conducted for this study and other published reports indicate that crimination laws in Serbia and the mechanisms available to seek legal redress. there is a significant lack of public understanding of the existence of anti-dis-

PrincipleStates 17 of have the aDeclaration duty to raise provides public awarenessas follows: about equality, and to ensure that all educational establishments, including private, religious and military schools, provide suitable education on equality as a fundamental right.

Since 2010, the Commissioner has conducted a series of educational programs and awareness raising campaigns, including specific programs for journalists, judges, public prosecutors and police. These include:

Training onof securitythe implementation sector employees of anti-discrimination responsible for standardsdealing with for gen employees in local self-governments (2012–2014); - der equality and discrimination issues in the police, military and other security sector institutions (2013); Training on anti-discrimination legislation, the mechanisms for protection from discrimination, and the rights of LGBT people for young people (2013–2014); ibid. ibid.

40 PetruSee above, note 18,Court Article Civil 41; Protection , LPD, Articlefrom Discrimination 42; , LGE, Article 46. 41 šić, N. (ed.), , Commissioner for Protection of Equality (Commissioner), 2012, p. 240. 87 88 EQUAL RIGHTS TRUST 43 42 about discrimination.Theirresponses included: asked whether there were aware ofany mechanisms availablefor complaining in Serbia. non-discrimination to right their enforce not do individuals why reasons main of the existence of Serbia’s equality laws and means of enforcement is one of the of awarenesslack a emphasisedvictims ofdiscrimination.that Theparticipants Niš, Vranje, Pančevo and Novi Pazar with representatives of CSOs who work with In late 2017, Equal Rights Trust researchers convened focus groups in Belgrade, on discriminationandtheavenues for redress available. ther workis needed to increase levelsunderstanding oftheprohibition ofpublic and panels. While this significant outreach work is welcome, it appears that fur bia’snumerousparticipatedconferences,in laws,has equality and round tables mental organisations (NGOs), has held over 200 lectures and workshops on Ser recentin years,addition,Commissioner, In the non-governwith partnership in 45 44

ing, 15November 2017,Novi Pazar; Equal Rights Trust focus group meeting,21December 2017,Vranje. Equal Rights Trust focus group meeting, 21December2017,Vranje. Equal Rights Trust focus group meeting,15November 2017,Novi Pazar. Romi istraživači (Roma Researchers), Case ofS.V., Case Study Research Report to Equal Rights Trust, 2018. Equal Rights Trust focus group meeting, 10 November 2017, Belgrade; Equal Rights Trust focus group meet against Roma andother vulnerablegroups ofchildren intheprovision of Training ofpaediatricians and nurses on preventing discrimination tion (2015); Training of employees in theeducationsystem onpreventing segrega the useoflegal protection mechanisms(2014); Training of Roma activists and leaders to recognise discrimination and tion against discrimination. Ombudsman] dealing with protectionor protec ofhumanrights I don’tknow if there are some other institutions[such as the know what to dowhen ithappensandhow to react to it. 90% ofcases,In people recognisediscrimination, butthey donot rights. Weknow don’t how to uselegal mechanisms for protection ofour Government (2012 –ongoing). the of Service Management Resource Human the by ised Training for civil servants, as part of permanent training program organ legislation (2017–2018);and Training for labour inspectors on different aspects of anti-discrimination placed persons(2015); tolerance, discrimination andrespectingcombating therights ofinternally dis promoting on employees self-government local of Training health services(2015); 42 During the focus groups and interviews, participants were directly were participants interviews, and groups focus the During 43 45 44 ------Many people know that anti-discrimination laws have been passed in practice equality and appropriate protection mechanisms have been established, but they know nothing more about it. 46

Our findings are similar to those reported by other organisations who have con- toducted justice wide-ranging on general legal surveys matters. with individualsThe questionnaire in Serbia, consisted albeit with of 29 different typical focuses. In 2013, two Serbian NGOs surveyed 1,200 people in relation to access enforcement and implementation of Serbia’s laws equality ing matters. legal problems,47 such as divorce, inheritance, property rights, mobbing and hous- seek judicial protection The report in found practice. that 17% of respondents did not know who to contact in relation to a legal problem,48 while 13% did not even know they could public understanding of the concepts of discrimination. The Commissioner has reportedComplaints that submitted many complaints to the Commissioner attribute less alsofavourable highlight treatment significant to matters gaps in that do not constitute grounds of discrimination. For example:

An allegation that an employee was treated unfavourably because she was married to a former director of the company. An allegation that an employee was treated unfavourably49 because of her expertise and conscientiousness which caused others to be envious. An allegation that a primary school student was treated unfavourably50 be cause he was naughty. An allegation that the51 police failed to investigate an allegation because-

52 the alleged perpetrator was related to a police officer.

Serbia’s equality laws cannot be effectively enforced in practice unless the gov- availableernment remedies.supports a wide-ranging public education campaign to inform those whom the laws are designed to protect and empower, about their rights and

46 Equal Rights Trust focus group meeting, 15 November 2017, NoviAccess Pazar. to Justice and Free Legal Aid in Serbia: Challenges and Reforms available at: http://www.yucom.org.rs/upload/vestgaleri 47 Lawyers Committee for Human Rights (YUCOM) and SeConS,. , 2013, p. 21, - ja_103_9/1363187570_GS0_BPP%20veliki%20_web.pdfIbid. 48 , p. 44. Regular Annual Report for 2011 49 Report.pdfCommissioner. for the Protection of Equality, , 2012, p. 50, available at: http://ravnopravnost-5bcf.kxcdn.com/wp-content/download/2011%20Regular%20Annual%20 Regular Annual Report for 2010

50 Commissioner for the Protection of Equality, , 2011, p. 56, available at: http://ravnopravnost-5bcf.kxcdn.com/wp-content/download/regular_annual_report_2010.pdf.Regular Annual Report for 2015 51 Commissioner for the Protection of Equality, , 2016, p. 191, available at: disability.http://ravnopravnost-5bcf.kxcdn.com/wp-content/uploads/2016/09/Commisssioner-for-the-Protec- tion-of-Equality-2015-Regular-Annual-Report-1.pdf; this case did not relate to a child with an intellectual

52 See above, note 50, p. 62. 89 90 EQUAL RIGHTS TRUST 55 54 53 the Committee ontheLegal System and State Authorities setoutplansfor a 41 its At services. aid legal free provide to training legalwithout clinics legal and NGOs permit would it that basis the on ciations vate lawyers. There isstrong oppositionfrom certain lawyers and theirasso large numbersofpersons ineligiblefor legal aidandstillunableto afford pri leavewould say they which test, means financial including criteria, eligibility civil societyandmembers ofthelegal profession. CSOs criticisetheproposed from bothbysecond opposed been has Lawdraft The adopted.the be toremains it but 2016), and 2011 from draft first (the debated been has Aid Legal free or reduced-fee legal services. Forfor the applypast seven can years, individuala draft an Law on which Free under scheme single no is there Serbia, In crimination. provided in cases where an beindividual asserts aid” their legalright to “appropriate equality that or non-dis requires similarly practice best International emphasised the connection between legal aid and effective remedies, as follows: has Women(CEDAWCommittee) against Discrimination of Forms all of nation Elimi the effectiveon remedy,Committeean tothe right the expresslycontain the Elimination of all Forms of Discrimination against Women (CEDAW) does not sary in order to ensure the right to aneffective remedy. WhiletheConvention on victims of discrimination, who cannot otherwise afford representation, is neces non-discrimination. and equality of including rights human of violations for remedy” “effective an proceedings; discrimination in tiffs Internationallaw expresslydoes not require states to provide legalaid for plain high court fees. and aid legal state-funded of absence the to due non-discrimination and equality to rights their enforce to poor,unable arethe overrepresented among are who groups marginalised amongst particularly Serbia, in individuals Many Cost ofLitigation 56 http://www.equalrightstrust.org/content/declaration-principles-equality. Declaration ofPrinciples onEquality tion ofAll Forms ofDiscrimination against Women On themendation No.28: core obligationsStates of partiesarticle under theof 2 Convention on the Elimina ests ofjusticesorequire”. with respect to criminal proceedings, whereassistance a person cannot afford representation, and“when the interlegal state-funded to right the has individual an that provide which 6(3)(c), Article (ECHR), 1950 005, C.E.T.S.Freedoms,No. Fundamental and Rights Human of Protection the for Convention and Committee on the Elimination of Discrimination Against Women (CEDAW Committee),(CEDAW Women Against Discrimination of Elimination the on Committee See, for example: ICCPR, Article2(3)(a);andECHR,13. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 1966 (ICCPR), Article 14(3)(d), as necessary. ble, accessible and timely remedies, withlegal aidandassistance States mustfurtherensure thatwomen have recourse to afforda 56 55 54 t s rube ht tt-udd ea rpeetto for representation legal state-funded that arguable is It , Equal Rights Trust, London,2008,Principle 18,available at: 53 however, it does require states to provide to states require does however,it , UNDoc.CEDAW/C/2010/47/GC.2, 2010,Para 34. st session in March 2018, March in session General Recom -

------equality in practice equality thoughpublic debate the Law on still the remains Draft Law to beon adopted.Free Legal Aid. The Ministry of Justice has now harmonised the text of the law in accordance57 with the remarks received,

Consequently, at present, legal aid programs are provided through an incomplete and fragmented network of services. There are some state-funded munici- pal legal aid centres which provide free or reduced-cost legal advice in discrimi- enforcement and implementation of Serbia’s laws equality providenation matters; legal representation however, such forcentres discrimination cover only approximatelyproceedings in one-third court. A ofsmall the country’s territory and about half of the total population of Serbia and cannot are able to support individuals with litigation. number of CSOs provide legal advice to individuals; however, few organisations There is provision in the Law on Civil Procedure for courts to appoint a free legal representative to a person if it is necessary for the protection of their rights. 58 courtsHowever, are this often only restrictive applies if in the granting court has the already exemption ordered59 from that payment court costsof court be waived for the person (such as taxes and expert fees). Since, as indicated below, fees, individuals are rarely provided with free legal representative. fees that courts impose on all civil litigation in Serbia. A plaintiff is required An additional financial barrier to initiating anti-discrimination60 litigation is the to pay court filing fees, feesThe tofollowing file expert is an evidence example and of thea fee average to receive costs the of discriminationcourt’s decision proceedings. (the fees61 themselves will depend on the value of the subject matter of the dispute).

Legal and court fees applicable in discrimination proceedings

in relation to the refusal to provide health services on the ground of A plaintiff seeks a finding of discrimination against a medical practice

sexual orientation, and compensation for damages in the amount of EUR 3,000. The approximate costs of such a proceeding could amount to more than EUR 1,000, as follows: Drafting of lawsuit: EUR 50; Court fee for filing a lawsuit: EUR 150;

57 Accurate as of 12 November 2018. For the harmonised text, see: Ministry of Justice, “Working Versions of Regulations”, visited 4 October 2018, available at: https://www.mpravde.gov.rs/sekcija/53/radne-verzi- je-propisa.php. 58 Law on Civil Procedure, “Official Gazette of the Republic of Serbia”, Nos. 125/04 and 111/2009, Article 170,Ibid. Para 1. 59 Serbia Judicial Functional Review . 60 World Bank, , 2014, p. 24, available at: http://www.mdtfjss.org.rs/archive//file/Serbia%20Judicial%20Functional%20Review-Full%20Report.pdf 91 61 See: Law on Court Fees, “Official Gazette of the Republic of Serbia”, Nos. 28/94, 53/95, 16/97, 34/2001 – other law, 9/2002, 29/2004, 61/2005, 116/2008 – other law, 31/2009, 101/2011, 93/2012, 93/2014 and 106/2015, Article 22. 92 EQUAL RIGHTS TRUST 67 66 65 64 63 62 ically inaccessible to persons with physical disabilities. of persons with disabilities. Lawyers’ offices and court buildings are often phys In addition, there are a number of barriers that prevent the equal access to justice socio-economic backgrounds andrural regions. legaltiating proceedings particularlyis disadvantageous for thosefrom lower ini involvedin time and cost the in increase Pančevo.This to in Court Higher 85km the travel to need municipality Vršac in Markovac example, village For of inhabitants hearings. court attend to distances long very travelling regions 25). are there which (of Courts Higher specialised more the to 66) are there which (of Courts Basic numerous In 2013, jurisdiction for discrimination proceedings was changed from the more There are two key physical barriersto accessto justicefor persons in Serbia. Physical Access to Courts andLawyers ipality, citizens arenot aware ofthelimited existencefree of legaltheir munic services in law,discrimination awarenessof manypublic of lack general the with Consistent of adverse costsinthecaseofunsuccessfuldiscriminationlaw proceedings. Finally, there is no regime in Serbia to protect an individual against the payment from fees which there meansthat is no decision on fees toeligible beappealed. cases, judges have even requestdeclined tofor decide exemptionon a plaintiff’s catesconsistentlyjudges donot that apply thisexemption inpractice.some In pay,to afford cannot who plaintiffs for fees such from tion nation proceedings. While theLaw onCivil Procedure provides for prior exemp The LPD does not provide for any release from payment ofsuchfees in discrimi

gov.rs/files/Akcioni%20plan%20PG%2023%20Treci%20nacrt-%20Konacna%20verzija1.pdf at: available 403, p. 54, Recommendation 1, Annex Services, Judicial of Efficiency images_files_Izvestaj_o_pristupacnosti_poslovnih_zgrada_drzavnih_organa.pdf with Disabilities 106/2015, 101/2013, 101/2011, law, other – 40/2015 –otherlaw, 13/2016,108/2016 and113/2017,Article23. 78/2011 law, other – 31/2011 101/2010, 104/2009, Ibid. a o Ognsto o Cut o Sri, Ofca Gzte f h Rpbi o Sri” Ns 116/2008, Nos. Serbia”, of Republic the of Gazette “Official Serbia, of Courts of Organisation on Law See above, note 61,p.24. Equal Rights Trust interview withrepresentative oftheLegal ClinicinNiš,27December2017,Niš. See above, note 59. Commissioner for Protection of Equality, of Protection for Commissioner Court fee for decision:EUR150. Fee paidto expert for assessmentofdamages:EUR500; the to according Advocate’s hearings, Tariff: EUR180(EUR60perhearing); three least at for representation Legal 64 or theirright to askfor anexemption from payment ofcourtfees. , 2013, available at: http://ravnopravnost-5bcf.kxcdn.com/wp-content/uploads/2012/11/ 66 This has resulted in individuals from certain Report onAccessibility of PublicAuthorities Premises to Persons

67 Despite philanthropic 62 ; Action Plan for Chapter 23, 23, Chapter for Plan Action ; our research indi https://www.mpravde. . 65 63 ------

some courts remain in practice equality 68 ofefforts refurbishing to support buildings renovations and heritage to Serbian provisions. court buildings, partially inaccessible to persons with physical disabilities,69 due to the high costs for persons with physical disabilities. Further barriers However, exist the due reorganisation to the lack of stateof the funding courts and for lowtranslation cost interventions and sign 70language could significantly facilities for increase individuals accessibility in meet

Rights Trust researchers. - andings translationwith their lawyers, facilities as 71are reported provided during in court focus proceedings. group discussions with Equal enforcement and implementation of Serbia’s laws equality and other documents are not However, automatically it is noted available that state-funded in accessible72 sign formats language for persons with visual impairments. Finally, judicial 73 In general, court documents are available providedonly in hard-copy with court and documents not in other in formats,an accessible such asformat audio on format request. or braille. How- ever, there is no research available as to whether persons with disabilities are Experienced Legal Practitioners

A final barrier to access to justice for victims of discrimination in Serbia is the limited number of lawyers, especially outside big cities, with experience in anti-discrimination law. Efforts to provide training to the legal profession on Serbia’s equality laws have been limited. For example, Equal Rights Trust researchers tionwere due informed to both that the the cost Bar of litigationChamber andof Serbia their hasprofessional not organised capacities. any training on anti-discrimination laws for lawyers. CSOs rarely initiate discrimination74 litiga-

3.2 Remedies and Sanctions nation requires that victims of discrimination be provided with “accessible and Under international law, protection of the rights The toCESCR equality has statedand non-discrimi that institu- 75 effective remedies to vindicate those rights”. - tions dealing with discrimination “should(…) be empowered to provide effective remedies, such as compensation, reparation, restitution, rehabilitation, guaran-

68 Milan Antonijević, Improving the Delivery of Justice in Serbia – Report: Improvement of Equal Opportuni- ties within the Serbian Judicial System in three areas of interest to IMG, International Management Group, 2013,Ibid. p. 4. 69 Ibid. 70 ; this report documented the case of a person with a physical disability who works in the High Court in Niš in an office on the second floor of the court building, and who has to be carried to his office, in circumstances where a relocation of office location would appear feasible. 71 Equal Rights Trust focus group meeting, 10 November 2017, Belgrade. 72 See above, note 59, Article 256. 73 Equal Rights Trust focus group meeting, 10 November 2017, Belgrade. 74 pravnost.gov.rs/en/reports.According to the Commissioner’s annual reports from 2010–2017, 75% of complaints were submitted by individuals, while only around 15% were filed by CSOs. Annual reports available at: http://ravno- General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 75 Human Rights Committee (HRC), UN Doc. CCPR/C/21/Rev.1/Add. 13, 2004, Para 15. 93 94 EQUAL RIGHTS TRUST seby t iiit poedns o ses h cntttoaiy f as and laws of constitutionality the assess to proceedings initiate to National Assembly,the of deputies 25 or self-government, local or autonomy territorial of bodies bodies, state bywhere instituted power,or the motion ownhas its on includes the right to equality and non-discrimination under Article 21.The which Court therein, granted rights the of violation a is there that event the in Court As noted above, theConstitutionconfers remedial powers on theConstitutional 3.2.1 remedy for stateimportant obligations for the realisation oftheright to equality. adequate of lack a is there lawsmeaning Serbia’sequality threeor Constitution the under action positivetake to failure the for provided are remedies no LGE, the under imposed sanctions financial the of exception the with however, that provide for both victim-focused and structural remedies. It is important to note, cedure exemplify therequirements of international law andbest practice and Table2A procedure, complaints the wellas proceedings,misdemeanour as in outlined as proceedings, civil across ranging non-discrimination to right the of violations for sanctions and remedies of range wide a for provide laws equality Serbia’s Declaration states: the law.of criminal 7 under Principle with dealt be may discrimination of tions manifesta severe certain discrimination, from protectioncomprehensive offer law.However,criminal to than rather civil of matter a as with dealt be ination internationaladdition, practiceIn best discrim requires for part, most the that, the Declaration which provides: tees of non-repetition and public apologies.” 77 76

See above, note 57,Principle7. See above, note 1,Para 40. Civil Proceedings ate remedies for those hasbeenbreached whoseto right equality portionate anddissuasive.must provide Sanctions for appropri forSanctions breach mustbeef oftheto right equality and deter such acts. and States musttake all appropriate actionto penalise, prevent thein commission offencesof violenceof incitementand to violence, equality. Such motivation mustbetreated as an aggravating factor with aprohibited ground constitutes aseriousdenialoftheto right bypart in or the characteristica having victim statusor associated Any actofviolence orincitementto violence that ismotivated wholly right to equality. changesational, or policy that isnecessary for the realisation of the tices andtheimplementation structural, of or institutional, sanctions mayalsorequire the pracelimination discriminatory of including reparations for material andnon-material damages; . Theremedies availablein civil proceedings pro the complaints and 77 76 This is reflected in Principle 22 of fective, pro

o rgani ------equality in practice equality other general acts. Any “legal or natural person” also has the right to an initiative to institute such proceedings. Following a finding of unconstitutionality by the Court, the law or general act which is not in compliance78 shall cease to be effective on the day of publication of the Court’s decision. against individual general acts or actions performed by state bodies or organi sationsAdditionally, with delegated the Constitutional powers which Court violate is granted or deny the human power or to minority hear appeals rights and freedoms guaranteed by the Constitution. - enforcement and implementation of Serbia’s laws equality 79 As previously stated, the Law withon the written Constitutional authorisation. Court provides that these appeals can also be filed by any “legal or natural person” or80 their representative, or on behalf of such persons

Table 2A Remedies available in judicial proceedings for violations of Serbia’s three equality lawsInterim (LPD, LGE injunction and LPDPD), where as there outlined is a risk in of violence, include: or “major irreparable

Injunction81 on discriminating or engaging in conduct that “poses the damage”; 82 threat of discrimination”; including to establish the position prior to the Mandatory injunction to83 “tak[e] steps and to redress to remove the consequencesmaterial that consti of discriminatory treatment”, 84 Declarationdiscriminatory that conduct the defendant (LGE only) discriminated85 against the plaintiff or an- tutes discrimination (LGE only); 86 and - other person; 87 Compensation for material and non-material damage; Order that the court’s decision be published88 in one or more daily newspapers with national coverage (LPD only).

78 See above, note 4, Article 168; these powers extend not just to laws and general acts in effect prior to the decision, but to those which have ceased to be effective within six months of the proceedings being initiated,Ibid. or, under Article 169, prior to their coming into force. 79 , Article 170. 80 See above, note 2, Article 83. 81 Ibid.See above, note 10, Articleibid. 44; see above, note 14, Articleibid., 50(2); see above, note 18, Article 45(1). 82 Ibid.,, LPD, Article 43(1); ibid., LGE, Article 43(2)-(3);ibid., LPDPD, Article 43(1). 83 Ibid. LPD, Article 43(2); , LGE, Article 43(5); LPDPD, Article 43(2). 84 , LGE, Article 43(5), which provides “[t]o eliminate the violation and establish the position, i.e. the stateIbid. before the violation.” 85 , Article 43(4), provides “[t]o put out of use the means, namely the objects having made a violation (the textbooks that are discriminatory or present a certain sex in a stereotype manner, printed matter, advertising aids, promotional material, etc.)” 86 Ibid.See above, note 10, Articleibid. 43(3); see above, noteibid., 14, Article 43(1); see above, note 18, Article 43(3). 87 Ibid., LPD, Article 43(4); , LGE, Article 43(6); LPDPD, Article 43(4). 88 , LPD, Article 43(5). 95 96 EQUAL RIGHTS TRUST 90 89 striking directly by injustice the remedy to power the have might courts tion, legisla of piece a from stems violation rights a where instance, For victim. the provide structuralremedies go beyondthat providing individualreparations to Internationalbest practice requiresthe power that be conferred on courtsto change to avoid therepetition ofdiscrimination,asfollows: structural of importance the emphasised 31 No. Comment General its in (HRC) structural CommitteeRights Human The discrimination. orderof cause the target remedies that to courts for provision no is There remedies. victim-specific on exclusivefocus their is laws equality Serbia’s under proceedings civil in ble location of the enterprise. the and defendant the of name full the as such proceedings, civil in published court’s areusuallythat not details include will judgment the and media, the in decision the of a publication is the involves case it as discrimination LPD the a under remedy in significant judgment court’s a of publication the example, prevent therepetition of discrimination and eliminate itsconsequences. edies provide strong protection from discrimination by includingmeasures to Serbian legalcommentators interviewed for this study consider these that rem who deliberately exposed him/herselfto discriminatory treatment. plaintiff, a human rights organisation, or a person engaging in test case litigation LPD, the compensation is Under group. or individual an of behalf on acting organisation an or available are remedies all regardless compensation, ofthenatureor whether oftheclaim individualis an the plaintiff for order an of exception the With 92 91

Gajin, S.(ed.), January 2018,Belgrade. 28 Sad, Novi from lawyer with interview November 2017, TrustNovi Sad; Equal Rights Rights Trust interview Equal with professor of Sad; the Law FacultyNovi in Belgrade, 23 2017, November 28 Sad, Novi in Faculty Law the of professor with interview Trust Rights Equal Belgrade; 2017, November 23 grade, Ibid. See above, note 76,Paras 16–17(emphasisadded). Bel from lawyer with and Belgrade in Court Appellate the of judge with interview Trust Rights Equal , Article46,Paras 1and3. ures may require avoid recurrence ofviolationinquestion. ofthetype to taken be to remedy, victim-specific a beyond measures, for in cases underthe Optional Protocol to include initsViews Accordingly,nant. ithasbeenafrequent practice ofthe Committee to take measures to prevent arecurrence ofaviolationthe Cove enant would bedefeated without anobligation integral to article 2 In general,violations (...) human rights of the purposes theof Cov lawspracticesand memorials, guarantees ofnon-repetition and tion andmeasures ofsatisfaction, such aspublicapologies, public [W]here appropriate, reparation can involve restitu Anti-discrimination laws–Guide not available for proceedings broughtby Commissioner the a as changes intheState Party’slaws orpractices. 91 , as wellas , tobringing as justice the perpetrators The main drawbackto thejudicialremedies availa , CUPS,Belgrade, 2010,pp.69–76. changes inrelevant tion, rehabilita Such meas the need the need 89 92 - - - 90 For - - - - Sim in practice equality 93 down, amending or providing a required interpretation of the legislation. - ilarly, courts might be empowered to impose structural injunctions, which are tojudicial be in orderscompliance that tellwith a theirparty constitutional what they must obligations. and must notAs discusseddo. In particular, in Part these injunctions dictate how government officials must change94 their behaviour legal and policy reform to address the underlying causes of discrimination. 3.2.2 below, the powers of the Commissioner include the ability to engage in

3.2.2 Complaints Procedure to the Commissioner enforcement and implementation of Serbia’s laws equality that the Commissioner shall receive and review complaints relating to violations The primary “remedy” available under the complaints procedure in the LPD is cases for action to be taken to address the discrimination alleged. While the Commissionerof the provisions has of limited the LPD powers and issue to enforce opinions compliance and recommendations with her recommenda95 in specific

The Com- tions, some consequences do flow from non-compliance. The LPD specifies96 that a perpetrator must and act may upon inform the therecommendation public if the perpetrator within 30 days.does not comply- withmissioner the caution. may97 issue a “caution” if the perpetrator fails compelto comply compliance with the with rec- theommendation, recommendations98 issued under the LPD. The Commissioner cannot, however, The Commissioner reports annually on the rate of compliance with its recom

- mendations issued under the complaint procedure (Article 33(1)) and pursuant to the general power to make recommendations99 (ArticleThe Commissioner 33(9)) under does the LPD. Annual reports from 2015–2017 indicate that there is compliance with the majority of the Commissioner’s recommendations. not, however, report on the number of public notifications issued in cases of Examplesnon-compliance of recommendations with recommendations. given by the Commissioner pursuant to the com plaint procedure include: - Complaint by an NGO against a primary school for discrimination committed on the basis of national identity in the field of education

(File no. 84,

Schachter v Canada Economic, Social and 93 CulturalThese various Rights options in the Courtroom: are discussed A Litigator’s in detail in Guide the leadingto Using case Equality of: Supreme and Non-Discrimination Court of Canada, Strategies to Advance [1992] Economic 2 SCR and 679; Social for aRights more detailed discussion, see: Equal Rights Trust,

, 2014, p. 100. Oregon Review of Inter- national Law 94 Hirsch, D.E., “A Defense of Structural Injunctive Remedies in South African Law”, , Vol. 9, 2007, p. 19. 95 Ibid.See above, note 10, Article 33(1). 96 Ibid., Article 39. 97 Ibid., Article 40. 9899 at: http://ravnopravnost.gov.rs/rs/izvestaji. Regular annual reports of the Commissioner for Protection of Equality for 2015, 2016 and 2017, available 97 98 EQUAL RIGHTS TRUST 102 101 100 of allemployees inregard to thissocialphenomenon. discrimination of persons in orderwith disabilitiesinparticular to achieve a larger degree of sensitivity that its employees pass training/professionalprovide development on the topic of discrimination in general,to and measures necessary all delay without undertake shall NES 3) NES; the of services the using when discrimination indirect and direct of form any prevents and specificities individual respects that dertakenecessary measures all order in to providehavedisabilities persons with all that procedure a un shall NES 2) officials; their by treatment degrading and harassment the of because G. M. to apology forbidden to visitorto stay overnight intheirhousingunits. are settlement their livein not do who persons the that units housing mobile the of beneficiaries the to issued notice written the removalof 3) system; housing social the from citizens the of rest the to apply that rules house the fromdiffer not will that content the with information new the placing is, that units, housing mobile in placed notice information rules” “house the amending 2) families; their of members strate anactive towards attitude activities oftheCityAdministration aimingto socialise individuals and demon not does beneficiary the that case in contract the unilaterallyterminate can Secretariat the that were: 1) removal from the contract regulating the use of mobile housing units of the provision prescribing provisionsaccordancethe arein LPD.with not the recommendations of Commissioner’s specificallyThe tice forbiddingtounits housing mobile visitsin thepersons wholive donot the containersettlement in no written the as well as settlement units housing mobile formednewlyfamilies, the in notice their rules” “house the of members and individuals socialise to aiming Administration City the of activities the towardsactiveattitude an show not does beneficiary the case in contract the unilaterallyterminate can tion concluded with the displaced members of the Roma national minority, prescribes that the Secretariat among pupils. behaviour non-discriminatory and diversities of acceptance tolerance, of spirit with a developing education of aim and the trainings programs, appropriate provide to order in competences his within ures meas employees;directornecessary sensitivityall undertakethe discriminationall of degreeshall 3) of fessional developmentcourse on thetopic of the prohibition of discrimination in order to ensure alarger undertakenecessary actionsandmeasures all to provideschool employeesall that pass atraining/pro posed exclusively of Roma children from internally displaced families; 2) the director shall without delay delaywithout school shall undertakenecessary actions andmeasures all to desegregate theclassescom Specifically, the Commissioner issued the following recommendations: 1) NES shall address a written a address shall NES 1) recommendations: following the issued Commissioner the Specifically, AdministraCity Belgrade the Children’sProtectionof and Social forSecretariat the which contract, The primary the of director the 1) recommendations: following the issued Commissioner the Specifically, on theprohibition ofdiscriminationfor bothstaffandstudents. desegregationthe provisionclasses and of the oftrainingeducation and identity.the basisoftheirnational The Commissioner recommended the criminated against children from internally displaced Roma families on Roma children from internally displaced families, the primary school dis 20 January 2012). By forming segregated classes attended exclusively by including sensitivity training ofemployees. against, discriminated being disabilities with persons prevent to taken be measures and Com issued, be apology The written a recommended missioner discrimination. of act an constituted which interpretation) ing manner due to his disability (which means he requires sign degradlanguage a in M.G. treated Service Employment National the of Officials employment and work of field the in ability The complaint by M.G.against NES for discriminationonthe basis of dis other restrictive rulesplacedontheRoma minority. mended removalof the right to unilaterally terminate thecontractand recom Commissioner The LPD. the with accordance in not was tration, Adminis City Belgrade the by contract the of termination unilateral for allowed which minority, national Roma the by units housing mobile of housing of field grade for discriminationcommitted inthe onthe basis of nationalidentity Complaint by Administration anNGOagainst theBel of City the of City (File no. 1673, 16 October 2012). A contract on the use the on contract A 2012). October 16 1673, no. (File (File no. 906, 15 June 2012). June 15 906, no. (File 102 101 100 ------equality in practice equality

Examples of cases in which the Commissioner has made a public notification following non-compliance with a caution include:

provideA complainant any evidence alleged to he disprove was not this. hired by General hospital “Laza K. La- erzarević” recommended Šabac, because the hospital of his takeRoma measures identity103 toand remove the hospital such discrimina could not In its opinion, the Commission-

- enforcement and implementation of Serbia’s laws equality thetion. public As the of hospital the discrimination failed to act and upon failure this torecommendation, act to rectify it. even after warning, the Commissioner made a public notification in order104 to inform

inJKP circumstances “Gradska Čistoća“, which a companythe Commissioner from Novi heldPazar, constituted prevented discrimithe com- nationplainant on from the choosinggrounds ofher religious own tombstone belief. for The her Commissioner father at a cemetery, issued a recommendation that a written apology105 be given to the complainant- and that she be able to choose her own tombstone. It further recom mended that steps were taken to ensure that this kind of discrimination - did not act upon these recommendations and the Commissioner made did not take place in future in the business’s activities. The company The Commissioner gave106 an opinion that an article in the Informer news a public notification. The Commissioner recommended that the newspaper meet with represent107 - paper constituted an act of discrimination against LGBT persons. - contributeatives of an to NGO change to benegative informed attitudes of issues and stereotypesfacing the LGBT against community the com munity.and the Theeffects newspaper that the didarticle not acthad upon on them, these andrecommendations to encourage them and the to - 108 Commissioner issued a public notification in response.

103 The complainant stated that he had applied for the job in this hospital many times, submitting all required thatdocumentation he was not hiredand fulfilling because all of requiredobjective conditions,reasons that but had he no was relation never to hired his nationality. because he belongs to the Roma national minority. During the proceeding, the hospital did not offer any evidence that would prove

104 Commissioner for Protection of Equality, “General hospital. ‘Laza Lazarevic’ discriminated a Roma nationality member”, 23 February 2018, available at: http://ravnopravnost.gov.rs/en/general-hospital-laza-lazarevic-discriminated-a-roma-nationality-member 105 theThe shape company of a didn’tcross. allow the complainant to place a pyramidal tombstone for her late father at the cemetery near Petar’s church in Novi Pazar. Instead, they conditioned her to choose one of five tombstones in http://ravnopravnost.gov.rs/en/ 106 Commissioner for Protection of Equality, “Announcement to the public – ‘Gradska Cistoca’ Novi Pazar. discriminated Nelica Grujic’s family member”, 20 October 2017, available at: announcement-to-the-public-gradska-cistoca-novi-pazar-discriminated-nelica-grujics-family-memberThe 107 article titled, “Horrible! Pajtić requests that faggots may adopt children! Shocking turnover of Dem- ocratic Party leader“, was published on 24 June 2016 in the Informer daily newspaper. The author commented that “[i]t is totally clear that accepting of Pajtić’s proposal would mean in practice that faggot violatingcouples in the Serbia provisions should of be LPD. allowed to adopt children!”, expressing disturbing and deteriorating ideas and attitudes that insult the dignity of persons with a sexual orientation other than heterosexual, thereby 99 108 Commissioner for the Protection of Equality, “Announcement. for the Public – Informer discriminated LGBT population”, 1 July 2017, available at: http://ravnopravnost.gov.rs/en/announcement-for-thepublic-informer-discriminated-lgbt-population 100 EQUAL RIGHTS TRUST 112 111 110 109 equality laws. Serbia’s on training additional for need the and judiciary; the in pub confidence lic of lack a proceedings; in delays include: These laws. equality Serbia’s of systemjudicial Certain aspectsofthe Serbia in impede theeffective enforcement 3.3.1 persistently low. awarenessremain of levels that indicates research our as enforced,adequately be to laws equality for order in obligations, their of duty-bearers amongst ness law reform. However, there in is a need engagement for the stateand to significantlylitigation increase strategicaware mechanism, complaint Commissioner’s the strategiesincluding of combination generallypractice,througha ing in well sioner in promoting compliance with Serbia’s equality laws appears to be work Commis the of role the contrast, By reforms. institutional significant for need formredress,independent of systemand court efficient the the an indicating as of Serbia’s equality laws by the judiciary is hampered by a plaints promptly, impartially, and independently.” such CESCR hasemphasised that institutions. rights human national by as well as mechanisms, istrative Effective enforcementlaws of equality may occur through judicialandadmin 3.3 40 to 420 for individuals, or person a entity found to have committedagainst discrimination. Fines range from between EUR fine a award may court a proceedings, misdemeanour In in practice rarely does so. 3.3.2 below,powerCommissionerthe the has tomisdemeanour chargesfile but bodies and persons who are discriminatedfurther in Part Asoutlined against. ours. Tablein 2A outlined as provisions, certain of violations to to respect proceedings with misdemeanour commenced be for provide each laws equality three Serbia’s 3.2.3 114 113

Ibid. 50,000). – DecisionoftheCC. See above, note 1,Para 40. See above, note 76,Para 15. to 5,000 (RSD Six Part 18, note above, see VII; Part 14, note above, see VIII; Part 10, note above, See Law on Misdemeanours, “Official Gazette of the Republic of Serbia”, Nos. 65/2013, 13/2016 and 98/2016 See above, note 10, Articles 50-60; see above, note 18, Articles 46–52; see above, note 14, Articles 53–55. 110 The Judiciary Misdemeanour Proceedings Enforcement (RSD 5,000to 100,000). Misdemeanour procedure can be initiated by different public authority public different by initiated be can procedure Misdemeanour . 109 Misdemeanour procedure is regulated by the Law on Misdemean on Law the by regulated is procedure Misdemeanour 111 to between EUR40to EUR840for legal entities. institutions “should adjudicate“should institutions orinvestigate com 114 Currently, the effective enforcement lack of public confidence in 113 The 112 ------Delays in Proceedings in practice equality

Delays in court proceedings in Serbia, particularly in the Constitutional Court, are well-documented. The European Commission has noted that while efforts to intackle the Constitutionalthe backlog of Court cases thatare ongoing,the115 constitutional lengthy court appeal proceedings was not considered continue anto hamper citizens’ access to justice. It is notable that delays were so significant 116 enforcement and implementation of Serbia’s laws equality effective remedy by the ECtHR until 2008. mentDespite of attemptsthe Constitution. at reform The in recentprocedure years, for the a constitutionallengthy delays appealin proceedings lasts on averagebefore the approximately Constitutional three Court, years. remain one of the biggest barriers to enforce- Changes and Amendments to the Law117 on the Constitutional Court 2011changed In order to increase efficiency, the Law on the composition of the panel which decides on constitutional appeals, by requir- ing that, instead of all 15 justices, decisions on the admissibility of a constitu- composedtional appeal of theare Presidentmade by a of so-called the Constitutional Small Chamber Court (three and seven judges), justices. while decisions on the merits should be decided by one of two so-called Grand Chambers,118 Participants in interviews and focus groups facilitated by Equal Rights Trust researchers indicated that the duration of judicial proceedings, combined with a lack of legal aid funding, is a major disincentive to seeking legal redress for discrimination.Many give Comments up as soon included as they (withare informed emphasis that added): the procedure is very long.119

In practice, there are many problems: the unwillingness of the discriminated person to fight for her/his rights, attitude that protection from discrimination will not be provided, and delays of the state institutions (at all levels) to conduct procedures in accordance with the Constitution and the law.120

Serbia 2018 Report: Communication from the Commission to the European Parlia- ment, the Council, the European Economic and Social Committee and the Committee of the Regions 115 European Commission, . , 2018, p. 17, available at: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20180417-serbia-report.pdfVinčić and others v Serbia 116 ECtHR, , Application No. 44698/06 and others, 1 December 2009, Para 51. 117 According to the last available Constitutional Court report from 2016, there were 22,712 constitutional appeals before this court, as follows: 12,556 unsolved constitutional appeals from previous years, six re-activated and 10,150 newly received constitutional appeals. Constitutional. Court Report for 2016, Belgrade, 2017, p. 4, available at: http://www.ustavni.sud.rs/Storage/Global/Documents/Mis- c/%D0%9F%D1%80%D0%B5%D0%B3%D0%BB%D0%B5%D0%B4_2016.pdf 118 Law on Changes and Amendments to the Law on the Constitutional Court, “Official Gazette of the Republic 119 of Serbia”, No. 99/2011. 120 Equal Rights Trust focus group meeting, 15 November 2017, Novi Pazar. 101 Equal Rights Trust interview with representative of the local self-government, department for child protection and social welfare, 23 January 2018, Belgrade. 102 EQUAL RIGHTS TRUST 127 126 125 124 123 122 121 emphasis added): key a as “institutions” reason fordiscrimination not initiatinglitigation. non-specified other and judiciary the in trust of lack a cited Trustresearchers,participants Rights Equal byfacilitated groups focus In for “unduepoliticalinfluenceover thejudiciary.” has stated that thecurrentand legislative constitutional framework leaves room Committee the and CERD Against Torture HRC, (CAT the Committee), including bodies, treaty UN the by raised an independentmechanism for seeking legal redress. Such concerns have been Our research also indicated a general lack of confidence in the judicial system as Independence ment system to improve theefficiencyandeffectiveness ofthejudiciary. of ahumanresources strategy includingauniform andfunctioningcasemanage The European Commission has called for reforms to be made, such as the adoption 129 128

meeting, 1November 2017,Niš;Equal Rights Trust focus group meeting,8December2017,Pančevo. 2015, Para 22. Committee), (CATTorture Against cluding Serbia Observations: Da sezna!(Itshould beknown!), CaseofM.,Study Research Report to Equal Rights Trust, 2018. Equal Rights Trust focus group meeting, 15November 2017,Novi Pazar. Equal Rights Trust focus group meeting,8December 2017, Pančevo. TrustgroupRightsfocus Pazar; EqualNovi November 2017, 15 Trust meeting, groupRightsfocus Equal See above, note 116,p.14. HRC, See above, note 116,p.13. Equal Rights Trust focus group meeting,1November 2017,Niš. Romi istraživači (Roma Researchers), Case of S.J., Case Study Research Report to Equal Rights Trust, 2018. slow thatcourt proceedings are expensive, There isalack ofmoneyfor payingthe court fees. People believe and we don’thave moneyto paythe lawyers, courts, etc. All and sexualbased on orientationhealth in sector] was seriousenough think didn’t I that the experiencedI discrimination [discrimination an individual,to dealwith alone. immediately take astep back because itis too muchfor him/her,as Instead ofthe balance ofpower there isanimbalance, thus citizens [M]echanisms for protection are politicisedand legal aidsystems inallmunicipalities. Concluding Serbia Observations: such proceedings longtime lastforavery I didn’ttrusttheinstitutions , they, knowdo not thelegal terminology,thereand are freeno

, UN Doc. CERD/C/SRB/CO/2-5, 3 January 2018, Paras 11–12; Committee 11–12; Paras 2018, January 3 CERD/C/SRB/CO/2-5, Doc. UN , Concluding Serbia Observations: , UN Doc. CCPR/C/SRB/CO/3, 10 April 2017, Para 35; CERD, 35; Para 2017, April 10 CCPR/C/SRB/CO/3, Doc. UN , 124 aswellas theEuropean Commission which 128 . 129 that the judiciary system is that the judiciary 122 125 126 Comments included (with included Comments , UN Doc. CAT/C/SRB/CO/2, 3 June 3 CAT/C/SRB/CO/2, Doc. UN , , they are expensive corrupted 121 . 127 123 Con - - Many Roma, like myself, don’t know that there are some institu- in practice equality tions, dealing with protection against discrimination, because from our very birth we get used to it and fight it throughout our life. We each do this in our own way and without the institutions because, unfortunately, we don’t trust them. We fight for our own life, and, somehow, we survive discrimination, raise our head and go on. 130 enforcement and implementation of Serbia’s laws equality These findings are similarly corroborated by other research surveys undertaken duein Serbia. to a lack The of 2013 trust studyin the onjudicial access system. to justice, discussed in Part 3.1.2 above, found that 30% of respondents had decided131 not to initiate court proceedings cial proceedings A 2014 study by the World Bank judicialwhich surveyed system. 3,288132 The reasonspeople – cited roughly for thehalf lack of whom of trust had included: had experience the duration of judi of- 133 - similarly found that only 26% of respondents trusted the and failure of the state to prosecute certain cases. proceedings; corruption; political influence; lack 134of fairness in court decisions; Similar findings were135 made in the research conducted by the News Agency Beta in November 2014. Rights Trust researchers cited a broader loss of faith in institutions in Serbia that It is important to note, however, that some interviewees who spoke to Equal extended beyond the judiciary. For example, a Roma man, who had experienced lowingdiscrimination, view: said to the Trust’s136 researchers, “to whom should we complain? Would it be worth complaining?” Similarly, a Roma woman expressed the fol- I have completely lost my will. I have no power to fight, not even to hope [...] Having a formal job is for me pure imagination, as is a pension, which I know I will never have. Unfortunately, the stories of my mother and my grandmother will be confirmed – that we, Roma women, are meant to give birth, to serve our husbands and to wait for old age to come. And the stories of protection against discrimination sound good, but they remain only stories. 137

Given the well-documented concerns as to the independence of the judiciary, several bodies have called for reform. For instance, the European Commission

130 Romi istraživači (Roma Researchers), Case of S.J., Case Study Research Report to Equal Rights Trust, 2018. 131 See above, noteExperiences 48, p. 44. and Perceptions of Justice in Serbia: Results of the survey with the general public, enterprises, lawyers, judges, prosecutors and court administrative staff 132 World Bank, , 2014, p. 142, available at: withhttp://www.mdtfjss.org.rs/archive//file/Experiences%20and%20Perceptions%20of%20Justice%20 court cases. in%20Serbia%20-%20EN.pdf; 1,349 with experience with court cases and 1,939 without experience Ibid.

133 Ibid., p. 71. 134 , pp. 71–72. http://www.eurac . 135 EurActiv, “Citizens of Serbia do not trust the institutions”, 2 January 2015, available at: - tiv.rs/pregovori-sa-eu/8212-graani-srbije-ne-veruju-institucijama- 136 Equal Rights Trust focus group meeting, 1 November 2017, Niš. 103 137 Romi istraživači (Roma Researchers), Case of L.J., Case Study Research Report to Equal Rights Trust, 2018. 104 EQUAL RIGHTS TRUST 140 139 138 be would study required to draw in-depth more specificanddetailedconclusions: more a However, them. enforce order effectively in more laws to equality Serbia’s on training additional from benefit may ciary crimination law have been identified, indicating that some members of the judi dis of misapplication of instances of number a analysis,preliminary this From and have undertaken apreliminary analysis of more than100 of these decisions. imately 200 court decisions in Serbia inrespect of the three lawsmain equality However,TrustRights Equalresearchers therearehaveapproxthat concluded ducting research on discrimination jurisprudence a time-consuming enterprise. are unrelated to discrimination. This resultsof visibility andmakes inalack con that cases other of range wide a include can which mobbing” and crimination “dis as such categories, other under fall rather proceedings”,but crimination ings under Serbia’s three main equality laws are not separately recorded as “dis poorly.Proceed cases discrimination categorises database case court Serbia’s interpretation inacross-section ofdiscriminationcases. illustrativehavelaws,wean equality conducted judicial analysispreliminary of of thelawapplication by key thecourtsisa of of theimplementation element study.this However,of scope the the as outside falls which of exploration full a topic, vast a is Serbia in law anti-discrimination of interpretation judicial The Judicial Interpretation the role ofpoliticiansintheappointmentjudgesshouldbereviewed. interference. undue political tive framework onthebasisof European standards to remove thepotentialfor has suggestedmade tobe amendments must that legisla and theconstitutional 142 141

Tasić, A., See above, note 42,p.272. See above, note 10,Article45,Para 2;seeabove, note 14,Article 49. See above, note 125,CAT Committee, Para 22. See above, note 116,p.14. proceedings on the basis that the plaintiff “did not prove” the existence the prove” not “did plaintiff the that basis the on proceedings number ofdecisions a in which courts have dismissed discrimination judgments. court’s the in cursory or from facie den ofproof orindicate whetherhas establisheda theplaintiff bur shifting the of concept the to refer to judges for rare is it Serbia, in the shifting burden of proof. In thecourse of discrimination proceedings case law indicatesSerbian that courtsrarely engage withtheconceptof laws. Serbia’sequality under proceedings nation is a key procedural mechanism to promote access to justice in discrimi hasestablished once the plaintiff a defendant, the to plaintiff the from proof of burden the of shifting The Civil Procedure inAntidiscrimination Lawsuits case of discrimination. 138 Similarly, CATthat suggestedthe has Committee 141 Similarly, such discussion is often absent often is Similarly,discussion such , Faculty ofLaw, University ofNis,2016, p.321. prima facie 142 Most concerningly,Most arethere 140 case of discrimination, of case However, of analysis 139 prima ------indicating that the burden of proof had not been in practice equality shifted at all. 143 Thereof discrimination, are some examples of courts incorrectly characterising cases as cases

of discrimination. For example, in the initial years of implementation of the LPD, a number of court decisions incorrectly characterised discrimination Supremeas “unequal Court treatment” of Cassation without stated considering in one decision whether that “thethe conduct basic character had oc-

isticcurred of discriminationin relation to a isprohibited unequal treatmentpersonal characteristic. in relation to Forother example, persons the in enforcement and implementation of Serbia’s laws equality -

the same or similar situation”, and found that a woman had experienced discrimination in the workplace, but did not examine whether this treatment Therehas occurred are instances “on the in grounds which the of [her] relevance personal of protected characteristics”, characteristics as required144 has by the definition of direct discrimination under Article 6 of the LPD. ously found that an employer had discriminated on grounds of marital sta tusbeen when misunderstood refusing to employby a court. a person For example, due to her in one marriage case, the with court the errone former- husband of one of the other employees. - that the dismissal of an employee on return145 from maternity leave was not discriminatory because the employee was replaced In another by another case, a woman.judge held 146 nise the distinction between direct and indirect discrimination. In one of In more complex cases, it appears evident that some judges do not recog-

boththe cases direct reviewed, and indirect the courtdiscrimination did not indicate in interpreting whether thedirect facts. or indirect discrimination occurred, and its decision quoted provisions prohibiting147 3.3.2 The Commissioner for the Protection of Equality ies in the protection of the right to equality: Principle 23 of the Declaration highlights the important role of specialised bod- States must establish and maintain a body or a system of coordi- nated bodies for the protection and promotion of the right to equality. States must ensure the independent status and competences of such bodies in line with the UN Paris Principles, as well as adequate funding and transparent procedures for the appointment and removal of their members.

Ibid.

143 , p. 327. “the 144 theDecision inability of the of Supremethe plaintiff Court to ofpresent Cassation, her opinionRev2 687/2012, in the morning 27 December meetings 2012; or the courtinterruption held that of the use of free days, the allocation of a larger number of patients, the exclusion from supplementary work,

plaintiff in her presentation, shouting at her and degrading her before the colleagues and patients, etc., are discriminatory behaviour towards the plaintiff.” 145 Decision of the Appellate Court in Kragujevac, GŽ 734/14, 3 March 2015. 146 Decision of the First Basic Court in Belgrade, 73 P. br. 18254/2012, 17 September 2013; Decision of the Appellate Court in Belgrade,Analysis GŽ 2746/14, of the 10cases September of Appellate 2014. Courts – legal protection from discrimination in Serbia 147 Šolić, N., and Golubović, K., , Judicial Academy, Belgrade, 2015. 105 106 EQUAL RIGHTS TRUST 153 152 151 150 149 148 address underlying causes of discrimination.Thisincludesthepower to: The Commissioner also hasthepower to engage inlegaland policyreform to Commissioner hasthreeThe key mechanismsto promote compliancewiththeLPD: national a that require human rights institutionbegiven “asbroad amandate aspossible”. which Principles Paris UN the with consistent is This to seeklegalreformand policy to address systemic patterns ofdiscrimination significantly,and, itself enforcementLPD tothe the of Commissioner the enable The LPD confers a wide range of powers on the Commissioner which relate both Competence andMandate non-discrimination. regardingmandateand specific equality torightsa the with bodySerbiatory in ity and non-discrimination more broadly. Serbia withaformal mandate to enforce theLPD and protect therights to equal organ”in state “independent an as operated has Commissioner the 2010, Since The CESCR has also highlighted the importance of specialised bodies, as follows: 155 154

Ibid. Ibid. ciples), G.A.Res. 48/134, 1993, http://ombudsman.rs/index.php/o-nama/uloga-i-funkcija at: availableFunction”,2018, and Octobermandate “Role 4 Ombudsman, visited Serbian and see: Ombudsman, the function of the regarding non-discrimina details and Forcontrary. equality the to to rights misunderstanding the some to despite extend tion, not does it but rights, human to relation in date The Serbian Ombudsman (Protector of Citizens) is a national human rights institution with a broad man See above, note 10,Articles35–40. United Nations General Assembly, Principles relating to the Status of National Institutions (the Paris Prin See above, note 10,Article33. See above, note 10,Article1. See above, note 1,Para 40(emphasisadded). , Article33(4). , Article35. Initiation ofmisdemeanourandcriminalcharges. Strategic litigation; A complaintsmechanism(discussedabove); accessible to without everyone discrimina tion in the field of economic, social and cultural rights. Institutions rights. cultural and social economic, of field the in tion vidual andstructural naturethe of causedharm by discrimina for mechanismsthat andinstitutions effectively address theindi National legislation,strategies, policies andplans should provide rights institutions and/or ombudspersons rights institutions courts andtribunals,administrative authorities, dealing with allega 150 “ 154

Competence andresponsibilities”, Para 2. tions of discrimination tions and 149 The Commissioner is theonly statu . tion. 153 customarily include 148 , whichshould be national human national 155 152 - - . 151 - - - - -

in practice equality

Provide public information156 about “frequent, typical and severe cases of discrimination”; Submit special 157reports to the National Assembly on particular issues of discrimination; and Monitor 158the implementation of laws and other regulations and that relate159 to equality, initiate the adoption of or amendments to160 regulations,

advancinggive opinions the on right draft to laws equality. related to discrimination; enforcement and implementation of Serbia’s laws equality Make recommendations to public161 administration and other bodies on As indicated in Table 3A lowed by the power to issue below, opinions the Commissioner and recommendations uses the general under powerthe com to plaintsissue recommendations mechanism. The for information measures to presented achieve equalityin Table most 3A is frequently, based on folthe- data reported by the162 Commissioner publicly and does not contain all of the- enforcement mechanisms available, such as the number of cautions issued and public notification issued under theTable complaints 3A mechanism. Overview of certain enforcement mechanisms under the LPD used by the Commissioner for the Protection of Equality Total Total 2010 2011 2012 2013 2014 2015 2016 2017

Complaints mechanism Opinions 109 and rec ommen 30 55 56 140 149 51 51 641 dations- (26+4) (36+19) (29+27) (32+108) (43+66) (50+99) (5+46) (18+33) under - LPD Arti

- cleMisdemeanour 33(1) and criminal charges Criminal 0 2 2 1 0 charges 6 3 3 17 0 0 1 2 1 1 1 9 meanour Misdecharges- 3

Ibid.

156 Ibid., Article 33(6). 157 Ibid., Articles 48–49. 158 Ibid., Article 33(7). 159 Ibid. 160 Ibid. 161 , Article 33(9). 162 Data is obtained from regular annual reports of the Commissioner for Protection of Equality for 2010, 2011, 2012, 2013, 2014, 2015, 2016 and 2017, available at: http://ravnopravnost.gov.rs/en/reports. 107 108 EQUAL RIGHTS TRUST 164 163 Source: Annual Reports ofthe Commissioner from 2010to 2017. 163 165 ments state Public ity) to equal (relating cle 33(9) LPD Arti under dations men Recom mattersPublic informationandrecommendations onequality legality ity and tutional of consti sessment for as Proposals litigation Strategic Litigation legal acts other laws and on draft Opinions laws changing ing and amend tives for Initia Legal reform andpolicy ings warn Public , 164

comments inanewspaper. relevant to humanrights orequality, suchasInternational Women’s Day. Available at:http://ravnopravnost.gov.rs/en/reports. A “public warning” is a statement given by the Commissioner in response to a public event, such as sexist day international an of occasion the on Commissioner the by given statement a is statement” “public A 164 - - - - - 163 ------4 2 0 0 0 0 1 2010 22 22 2 8 2 3 3 2011 117 17 5 1 2 3 5 2012 10 15 24 0 6 3 3 2013 198 20 2 2 2 0 6 2014 165 215 17 35 1 0 0 9 2015 665 40 25 1 0 1 9 2016 501 41 13 20 1 3 2 2017 1,744 111 158 16 16 58 6 Total Complaints mechanism in practice equality

Our research indicates that the complaints mechanism under the LPD operates well in practice, subject to the need for some small modifications. The com- lutionplaints of mechanism discrimination is free, matters designed than to judicialbe simple proceedings. to use, and Whileoperates there according are no to a prescribed timetable, making it more accessible and efficient for the reso- the independent investigation of alleged discrimination and recommendations enforcement and implementation of Serbia’s laws equality forlegally redress binding that sanctionsa perpetrator that isflow instructed from the to complaintsfollow. mechanism, it enables lined in Table 3B below. Since 2010, the Commissioner has received a total of 4,097 complaints as out- Table 3B

Number of complaints received by the Commissioner Year 2010 2011pursuant2012 to Article2013 33(1)2014 of 2015the LPD2016 2017 Total

4,097 complaints Number of 124 335 465 552 666 797 626 532 Source: Annual Reports of the Commissioner from 2010 to 2017. 166 persons in Serbia expressing readiness to approach the Commissioner with cases Research conducted in 2016 by the Commissioner indicated that the number of expressedof discrimination such willingness. is increasing; in 2013, only 2%167 of persons were willing to contact publicthe Commissioner awareness about in cases the roleof168 discrimination, of the Commissioner. whereas The bysame 2016, research 18% ofconducted persons However, there appears to remain a need for greater by the Commissioner in 2016 found that people perceive the police as an institution responsible for discrimination, rather than the Commissioner, and more169 people Commentswould report made discrimination to Equal Rights to the policeTrust researchers(21%) than to during the Commissioner. focus group discus sions also indicated some reluctance to submit complaints to the Commissioner: - LGBTTIQA community members are not informed enough about the existence and activities of the Commissioner. The lack of information

Available at: http://ravnopravnost.gov.rs/en/reports.

166 Regular Annual Report for 2013 167 Commissioner for the Protection of Equality, , 2014, p. 30, available at: http://ravnopravnost-5bcf.kxcdn.com/wp-content/download/redovan_izvestaj_2013_eng.pdf.Abridged version of 2016 Regular Annual Report 168 Commissioner for the Protection of Equality, , 2017, p. 32, available at: http://ravnopravnost-5bcf.kxcdn.com/wp-content/uploads/2017/10/Poverenik-Skraceni- 109 godisnji-izvestaj-za-2016-engl-za-odobrenje-za-stampu.pdf.Ibid. 169 , p. 32. 110 EQUAL RIGHTS TRUST 173 172 171 170 compli enforce to litigation of use the support not Commissioner,previousdo Commissioner, present However,the made. recommendations with Citizens), of (Protector man Ombuds Serbian likethe officials, public of dismissal proposethe powerto the including perpetrators, sanction to powers greater favour experts legal Some procedure. complaints the under recommendations with non-compliance for whether the Commissioner should have greater powers to impose sanctions Serbian legalexperts interviewed for this study differ in their views asto changes to theLPDare needed. whether discuss to order in lawyers) and academics, judges, professors, (law anti-discrimination of field the in experts legal eminent with 2017 March and Februaryresearchersstudy’sin this by attended and Commissioner the by ised proceedings. Similar opinions were expressed during two roundtablesorgan on thebasisthatitwould unnecessarily constrain theright to initiate judicial dictions. Most interviewees indicated that they would oppose any change to this, complaint a mit mechanism under the LPD. Currently, there is no requirement for a party to sub support amongstinterviewees regarding the optionalnature of the complaints strong was theresystem, complaints the of operation general the to relation In 174

is determined that theinjurymadeto theperson causedmaterial orother seriousdamageto thatperson. employeeor official the reveals intenttorefusethe Protectorco-operationthe whenwith it or Citizens, of of behavior recurring the injury,when an for responsible is who administrativeauthorities the of ployee em proceedingsan againstdisciplinary initiate to i.e. rights, citizens’ of violation responsiblefora is who Article 20, provides that the Ombudsman has the power to publicly recommend the dismissal of an official 2018. Research Report to Equal Rights Trust, 2018. Law on the Protector of Citizens, “Official Gazette of the Republic of Serbia”, Nos. 79/2005 and 54/2007, and Serbia”,79/2005 of RepublicNos. the of Gazette “Official Citizens, of Protector the on Law Equal Rights Trust interview withtheCommissioner, 1February 2018,Belgrade. Trust, Rights Equal to Report Research Study Case B.J., of Case Researchers), (Roma istraživači Romi Study Case S., of Case Handicaps), with Students of (Association hendikepom sa studenata Udruženje Equal Rights Trust focus group meeting,8December2017,Pančevo. tion basedonsexual orientation andgender identity. missioner mustpublicly address cases ofhate speech anddiscrimina to bemore promotedto the LGBTTIQA community,but alsothe Com needs Commissioner the only Not difficult. more even becomes tion from discrimination,hence access to justice for victimsofdiscrimina results innarrowing down the choice ofmechanisms for protection eficial. know what he/shedeals with, butIdo doubt that itwould be ben haveI never thought addressingof the Commissioner. evendon’t I at the faculty. procedures dueto thefear from thepossible revanchistbehaviour believe theywould manage to helpwantdidn’t I me,but to initiate heardI abouttheCommissioner, havebut neveraddressed her.I 172 prior 171 to commencing litigation, as is the case in some other juris 173 andto initiate litigation to require compliance 170 174 andthe ------

equality in practice equality ance with recommendations, instead taking the view that litigation should be reserved for strategic purposes. The present Commissioner, in an interview for the present study, expressed the175 view that, in this regard, “the Commissioner’s mandate is generally adequate”. need for reform to enable the Commissioner to initiate an investigation into Nevertheless, there was general consensus amongst interviewees about the enforcement and implementation of Serbia’s laws equality alleged discrimination on her own motion, without waiting for a complaint to be received (in line with the mandate which is available to the Ombudsman). This Theis reflected Commissioner in the recommendations also indicated that in Partreform Four was of theneeded study. to procedural rules statein the that complaint’s the rule onprocedure. the shifting In an of theinterview burden with of proof Equal applies Rights to Trust both research the com- ers on 1 February 2018, the Commissioner noted that the LPD Some should legal explicitly experts interviewed by Equal Rights Trust researchers also suggested176 that a limitation- plaint procedure, and judicial proceedings under the LPD. exceptional circumstances. inperiod a timely be introduced manner and within would177 which enable complaints the Commissioner must be filed, to investigate with flexibility matters for before evidence is lost or destroyed. This would encourage victims to file complaints

Strategic Litigation

Strategic litigation is an important mechanism by which the Commissioner can seek redress for violations of the LPD and achieve wider societal change. Each

Commissioneryear, the Commissioner initiates litigation initiates ain small order number to promote of strategic the consistent cases (approxi imple- mentationmately three of theper LPDyear) and under to encourage the LPD, arisingvictims fromof discrimination complaints received. to seek legal The redress. - 178 The Commissioner does not have a mandate, nor a budget, to conduct thislitigation is not in well relation understood to large by numbers members of of individual the public cases, who sometimesnor to enforce apply com for- assistancepliance with with recommendations ad hoc following the complaints procedure. However,

cases, likely due to the absence of state-funded legal aid. tion under the LPD is that it must relate to a complaint received. There was The most significant limitation on the Commissioner’s ability to conduct179 litiga-

175 Equal Rights Trust interview with the Commissioner, 1 February 2018, Belgrade. 176 See above, note 10, Article 45, Para 2. 177 Including: two roundtables organised by the Commissioner in February and March 2017 with eminent legal experts in the field of anti-discrimination (law professors, judges, members of Academia, lawyers, etc); and Equal Rights Trust interview with professor of the Law Faculty in Novi Sad, 28 November 2017, Novi Sad; Equal Rights Trust interview with professor of the Law Faculty in Belgrade, 23 January 2018, Belgrade. 178 See above, note 52, p. 171. 111 179 See above, note 10, Article 35(1); Rules of Procedure for the CPE, Article 15. available at: http://ravnopravnost-5bcf.kxcdn.com/wp-content/uploads/2012/11/images_files_POSLOVNIK%20 O%20RADU.pdf. 112 EQUAL RIGHTS TRUST 182 181 180 2010 include: Prominent examplesof strategic litigationconducted by theCommissioner since suit initiated by anotherauthorisedparty. stitutionality of legislation and legality of conduct, initiate proceedings beforeCourt for theConstitutional theassessmentofcon has beenbroughtplaint bygroup a of persons. consent; individual’s the seek must Commissioner the individual, single a to relates litigation the if LPD, the Under the study. the in press, the by example for absence of alerted,a This complaint. is reflected in the recommendations in Partis Four of it which to LPD the of violation a studythis unnecessarily that of theCommissioner the ability limitsto address broadthose whom consensus amongst theEqualRights Trust consulted for this 184 183

The Commissionerisnotrequired to have a written consentto filealawsuit inthislegal matter.” committed against a particular group: an indefinite number of persons – children of the Roma nationality. quired to have a written consent for filing a lawsuit in this legal matter, but for the discrimination that was rewouldbe Commissioner the case which in person, particular a against discrimination determining at directed not is Namely,lawsuit courts. the lower the by consideredwrongly as consent, haveto obliged of determination the for lawsuit discrimination relatesthe to a group of persons, which is the subject of this lawsuit,“[i]f the Commissioner is not held Cassation of Court Supreme the claim, Commissioner’s persons on thebasis of the same personal characteristic. While thecourts of lower instance rejected the Commissioner the consentwasclaimed that necessary not as thediscrimination related to two ormore The dismissed. be should claim the and litigation initiating before parentschildren’s the of consent the woman who wanted to buy themfood. The defendantthe Commissioner claimed that had failed to obtain related to discrimination againstthree Roma children wherebyrestaurant a refused a them entrywith Ibid. See above, note 52,p.178. See above, note 59,Article215. See above, note 4,Article168,Para 1. which 2014, Rev.September Cassation, 9 of 853/2014, Court Supreme the of Decision example:for See, , LPD, Article46, Para 3. not racists, but we cannot live together with them because our peace is is peace our because them with together live cannot we but racists, not are WeKosovo. from Roma of settlement the as much as Sirča degraded have earthquakes nor floods 2014 Neither times. July difficult having 17 is “Sirča on that: Sirča of community local the of president the by made of discriminationagainstcase A theRoma concerning statements minority Commissioner infull. the of arguments the accepting Court, Appellate the of decision the held national coverage. In February 2015 the Supreme Court of Cassation up and ordered ofthejudgementinadaily the publication newspaper with hibited thedefendantfrom acts ofdiscrimination committing infuture pro gender, of grounds the on discrimination direct to amounted this company policyto only employ women. The Appellate Court ruled that fered a jobeachtimewhile theman was turneddownon thebasisof fe threeat student applied male different restaurants.one The woman was of and student male desk”,one front the at work to needed “girls which only employs women. After a jobadvertisement was posted for chain restaurant pizza a against discrimination gender-based of case A 184 180 however, this is not needed if the com the if needed not is however,this 183 181 182 TheCommissioner may also andmay intervene inalaw ------equality in practice equality

disrupted. During the Turkish occupation, the villagers of Sirča were run- heldning intothat thethis hills, constituted in Trgovište, a severe it seems form we of will discrimination have to do the against same memagain. bersWe cannot of the Romamix with minority. them”. The The Court Higher forbid Court the in president Belgrade from on 8 giving June 2015 such -

tionalstatements minority in the in future,a daily newspaperand ordered with him national to, at his coverage. own expense, publish,

together with the decision of the Court, a public apology to the Roma na- enforcement and implementation of Serbia’s laws equality

Initiating Misdemeanour and Criminal Charges

The violation of certain provisions or criminal of Serbia’s charges equality for actslaws so can prescribed result in aunder mis- thedemeanour LPD. or criminal charges.185 The Commissioner has the power, but no obli- ingation, Table to186 3Afile misdemeanour In practice, the Commissioner rarely exercises this power, as outlined pursuant to .its Since power 2010, to makethe Commissioner recommendations has filed to public 17 criminal administration charges and othernine misdemeanour bodies on advancing charges, the comparedright to equality. with making 1,744 recommendations 187 Public Education and Engagement in Legal and Policy Reform campaigns and contributed to debate on legal and policy reform affecting equal ity.Since As 2010, indicated the Commissioner in Table 3A has engaged in a wide range of public education dations to public authorities and other persons regarding measures to achieve- , the Commissioner frequently gives recommen- and to improve the functioning of state institutions in creating equal opportu equality, to eliminate the causes of structural and institutional discrimination, a draft law- nities. Prominent examples include providing written amendments advice (known to188 the as LPDPD “opinions”) on: amendments190 to the Criminal Code (September189 2016); to replace the current LGE (December 2015); Some(November experts 2015). interviewed for this study indicated that reform was needed to strengthen the Commissioner’s power to initiate draft laws relating to equality. At present, the Commissioner cannot propose a draft law for debate by the National Assembly, unlike the Ombudsman; instead, the Commissioner is required to find a ministry that is willing to support the draft law in Parliament.

185 See above, note 10, Article 33(4). 186 Law on Criminal Procedure, “Official Gazette of the RS”, Nos. 72/2011, 101/2011, 121/2012, 32/2013 and 45/2013, Article 280. 187 See above, note 10, Article 33(9). 188 See above, note 169, p. 109. 189190 Ibid.See above, note 52, p. 173. , p. 168. 113 114 EQUAL RIGHTS TRUST 196 195 194 193 192 191 missioner, some interviewees indicated that the Office of the Commissioner should While noconcernswere directly raised regarding the independenceofCom nation inSerbia, andtheactivities conducted by theCommissioner. non-discrimi and equality of evaluation an contains which Assembly National of Cassation. receivesand is equivalentthat salary a to of theSupremejudge of a that Court miss the Commissioner. number of circumstances in which a majority of the National Assembly may dis once. re-elected be only may and term five-year a for missioner is elected byof parliamentariansAssemblymajority a National the in and organ” state “independent includes anumberof mechanisms to guarantee itsindependence. an as Commissioner the establishes LPD The its independence.”affect might which control financial to subject be not and Government the of independent be to order in premises, and staff own “its for receivesfunding national mandate”, of “stable members a have that institutions Principles rights Paris human UN the of requirement key a is It Independence tion. TheCommissionerproposed thatthegovernment should: non-discrimina and equality relevantto legislation introducing to prior sioner Commis the of Office the with consultation mandatory for requirement new a currentCommissioner,The presentstudy,forthe interview an in proposedalso 198 197

Ibid. interest when it comesto performing publicfunctions. of conflict regulating law the to contrary act they if or independence, their influence could that job a or citizenship; if they perform his/her another public function or professionalloses activity; if they performCommissioner another duty the if Commissioner; of function the perform to unfit and unworthy them has committed a criminal offence punishable by a prison sentence, when the nature of the offence makes Commissioner the that decision, court enforceable an by established, is it if negligently; and fessionally Ibid., or politicaldutyprofessional activity asstated inthelaw. professional qualities canbeelected as aCommissioner. The Commissioner cannot holdany other public and moral high has who and rights human protecting of field the in experience of years ten least at and Ibid. Ibid. See above, note 10,Articles29–31. See above, note 10,Article1. Paris Principles, Equal Rights Trust interview withtheCommissioner, 1February 2018,Belgrade , Article 28, which provides that a citizen of the Republic of Serbia, who has a bachelor’s degree in law , Para 2. , Article33(5). [I]ntroduce alegal obligation onall public authorities to askfor the and cross-sectoral cooperation. more attention needsto bepaidto thecompliance regulations, of Commissioner’s opinionondraftlaws, because practiceshows that Article 30, which provides that these include: if the Commissioner performs his/her work unpro work his/her performs Commissioner the if include: these that provides which 30, Article 197

TheCommissioner is required toreportannual an submit to the 193 “ Composition andguarantees ofindependenceandpluralism”, Para 3. 196 The Commissioner has the same immunity as an MP an as immunity same the has Commissioner The 191 192 195 and that the institution andthat There are only asmall 194 198 The Com ------equality in practice equality legislation which is subject to amendment and potential political interference.199 be established pursuant to the Constitution, like the Ombudsman, rather than in

In relation to funding, the LPD provides that the Commissioner is entitled to followingthree assistants the procedure who have outlined responsibility in the Law for oncertain Civil areasServants. of work,200 The as LPD well fur as thera number provides of expert that thestaff, state all ofbudget whom shall the Commissioner provide the funds may requiredappoint directly, for the

- enforcement and implementation of Serbia’s laws equality the Commissioner.201 work of the Commissioner and its staff, following submission of a proposal by In an interview for the present study, the current Com- missioner indicated that the annual budget was usually sufficient for the per- formance of its statutory202 responsibilities; however, the Commissioner noted that the full amount requested in its 2018 budget was not approved by the National Assembly. It is the general practice of the Office of the Commis- sioner to obtain funding from international organisations, foreign embassies quateand NGOs situation to conduct for a nationalsome of itsequality activities, body such to be as in. public education campaigns and opinion polls, to cover a shortfall in funding, which is evidently an inade- A number of interviewees indicated that further funding should be allocated to ena

- ble the Commissioner to establish additional regional offices. Currently, the Office accessibleof the Commissioner to individuals is headquartered living in other in geographical Belgrade and areas. has only one regional office in Novi Pazar. The lack of regional offices makes the Commissioner203 less visible and The Commissioner’s 2016 Annual Report stated that, as in previous years, “the Regional Office of the Commissioner for the Protection of Equality in Novi Pazar had an extremely small number 204of complaints claiming discrimination on any grounds filed by the local population.” However, based on our research, this is not attributable to a lack of need for the Commissioner’s service but rather inadequate levels of public awareness. 3.4 Compliance with Equality Laws by State and Private Actors

The ongoing patterns of discrimination in Serbia, discussed in Part One, indicate that many state and private actors do not comply with their obligations under Serbia’s 199

Equal Rights Trust interview with representative of the Faculty of Law in Niš, 22 December 2017, Niš; Equal Rights Trust interview with representative of the Legal Clinic in Niš, 27 December 2017, Niš; Equal Rights Trust interview with professor of the Law Faculty in Belgrade, 23 January 2018, Belgrade;Legal, Social see also: and Petrušić, Political ControlN. and Molnar. in National, A., “The International Status and andCorrelations EU law between the Ombudsman and the Commissioner for the Pro- tection of Equality in the Serbian Legal System“, in Lazić, M. and Knežević, S. (eds.), 200 , Faculty of Law, University of Niš, 2016, pp. 81–82. 201 Ibid.See above, note 10, Article 32. 202

Equal Rights Trust interview with the Commissioner, 1 February 2018, Belgrade. 203 See above, note 10, Article 33, Para 1, point 8. 204 See above, note 169, p. 21. 115 116 EQUAL RIGHTS TRUST 205 privatesector,and public with from persons both respondents,cited most tion, askedWhen who they considered toparticularly be vulnerableto discrimina prevalence ofdiscrimination,asoutlinedinPart Oneofthisstudy. be widespread inSerbia.This isparticularly concerning when considering the respondents interviewed indicated theythat did not consider discrimination to the society,of approximatelyof half sectors all in widespread is discrimination respondentsWhile fromsector thepublic were generally aware ofthefactthat lic authorityofficialsaid: ence of other problems, such as corruption and nepotism. For example, one pub consider discrimination to be a serious social problem in Serbia, given the exist Manyrespondentsthe of interviewed by Equal Rights Trust researchers not did Recognition ofDiscriminationasaSocialProblem inSerbia laws andareas inwhich significantadditionaltraining isrequired. with conducted interviews Serbia’sequality awarenessof of levels current the their highlightingduty-bearers, of findings the summarise we section, this In The topics covered intheinterviews included: health care, judiciary, employment, state administration andlocalself-government. protection, social education, including sectors, of range a from level local and cial enterprises, small and medium large, domestic and representativesinternational from13 with plex. To understand the issue, Equal Rights Trustcom researchers conducted often interviews are laws equality with non-compliance for reasons The laws. equality 206

%80%D0%B0%D0%B2%D0%BD%D0%B8%D1%85%D0%BB%D0%B8%D1%86%D0%B0.aspx 7%D0%B2%D1%80%D1%81%D1%82%D0%B0%D0%B2%D0%B0%D1%9A%D0%B5%D0%BF%D1 %B7%D0%B2%D0%B5%D1%88%D1%82%D0%B0%D1%98%D0%B8/%D0%A0%D0%B0%D0%B %D0%BD%D0%B0%D0%BD%D1%81%D0%B8%D1%98%D1%81%D0%BA%D0%B8%D0%B8%D0 rs/%D0%A0%D0%B5%D0%B3%D0%B8%D1%81%D1%82%D1%80%D0%B8/%D0%A4%D0%B8 employees. 10 than less – enterprises micro employ 50 ees; and 10 between enterprises small employees; 250 and 50 between – enterprises medium employees; 250 than more – enterprises large employees: of number to according firms/enterprises of The Agency for Business Registers of the Republic of Serbia has developed a methodology for the division Equal Rights Trust interview withrepresentative oftheUniversity ofNiš, 27December2017,Niš. not gender orother discrimination. than inthetry western world. Thebiggest problem isnepotism,and Speakingfrom experience, lessis discrimination present counour in Whether furthertraining onanti-discriminationlaw isneeded. tions underanti-discriminationlaws; Issues encounteredand complying in implementing their obliga with Their awareness oftheprevalence ofdiscriminationinthesociety; ligations imposedunder anti-discriminationlaws; ob and scope the discrimination, of prohibition about knowledge Their 205 and 34 representatives of public authorities at the national, provin national, the at authorities public representativesof 34 and 206 oe nomto aalbe t http://www.apr.gov. at: available information More - . ------equality in practice equality disabilities, particularly those with mental disabilities, while their opinions dif- fered significantly regarding other social groups vulnerable to discrimination. Regarding discrimination against the LGBT+ population, Roma persons and the elderly, attitudes varied from “not discriminated at all” to “the most discriminated group”. A number of respondents indicated that there was no discrimination against Croats, Albanians, Bosniaks and Hungarians and national minorities 207 generally. One respondent claimed that “[…] there is not a single group of people enforcement and implementation of Serbia’s laws equality discriminated in Serbia”. whether there were any barriers to access to services for marginalised groups in Most respondents, from both the public and private sector, when asked directly tiveSerbia, responded denied that as follows: barriers existed and indicated that all services were accessible and available under equal conditions. For example, a university representa- All students and teachers have the same treatment in accessing services provided by the Office of International Cooperation. Problems can arise from the fact that a small number of people provide services to a large number of interested persons, but not because of discrimination. According to the nature of the University as a state institution, recognising a person as marginalised is not appropriate, and everyone has equal access to opportunities in accordance with the rules specified by law or by internal acts and programs. 208 The only exception to this phenomenon was some recognition that persons with physical disabilities experience physical barriers in accessing certain services:

[T]he main obstacles are physical barriers. We do not have an elevator in our institution, and persons with disabilities cannot move unobstructed through the Clinic building. Namely, the Clinic in which I work, provides healthcare for children with disabilities from nine administrative districts of Serbia. These children are examined on the second floor of the Clinic, and their parents and clinical staff have to carry them on to the second floor, because no one has so far provided funds to set the electronic platform for wheelchairs or an elevator.209

Persons with disabilities have limited access to legal services due to the inaccessibility (lawyers’ offices).210

A public call for projects, as well as allocation of funds on various bases is published in the Official Gazette of the Autonomous Prov-

207 Equal Rights Trust interview with employee of the firm for computer engineering, 28 November 2017, Novi Sad. 208209 Equal Rights Trust interview with representative of the University of Niš, 27 December 2017, Niš. Equal Rights Trust interview with representative of the regional health institution, 15 January 2018, 210 Novi Sad. Equal Rights Trust interview with lawyer from Novi Sad, 28 November 2017, Novi Sad. 117 118 EQUAL RIGHTS TRUST 212 211 bers ofspecificsocialgroups (dueto deep-seated prejudices), asfollows: mem hire not would they that indicated number study,a this for interviewed privatewerethe fromrespondentswhosector 13 the of all, of concerning Most sexual orientationandethnicity. religion, person’s a of consideration a include could comments, subsequent in health suggestedwas environment”working it which, the into “fit to ability age, and status candidate’s a of) basis the on discriminated directly (i.e. account” advertisementstions injob wentbut on to acknowledgethey that “tookinto advertisements. Otherrespondentsthere denied that were express prescrip job in sex candidate’s regardinga specifications including by such) as practices the identify not did they (although discrimination direct to amount which tices unlawful.number ofrespondentsA small indicatedthey that engaged inprac in questiondidappeartonot beawaretheythe acts that were describing were processes which, on the facts, constitute direct discrimination. The respondents nature Someof the respondents of this conduct. openly discussed recruitment unlawful the of recognition Trustresearchers,apparentlywithout Rights Equal starkly made was laws equality apparent Serbia’s by their towillingness discuss blatantly discriminatory practices with of awareness of lack bearers’ Duty certain dutiesimposedonemployers under theLGE andtheLPDPD. authorities. However, levels of awareness were somewhat higher with respect to the prohibitionthat ondiscrimination onlyto applies theconductofpublic the LPD. In addition, approximately 30% of the respondents incorrectly believed under duties their awareof werenot they but Serbia, in prohibitedwas ination discrim awarewerethat most interviewed, persons 47 the law,Of LPD.ity the Serbia’scomprehensiveequal of elements key the with whelminglyunfamiliar over were study this for Trust Rights Equal the by interviewed Duty-bearers Lack ofAwareness ofContent ofSerbia’s Laws Equality cember 2017,Belgrade. De 6 conditioning, air for firm the representativeof with interview Trust Rights Equal Belgrade; 2018, commodation andadoption,15January 2018,Novi Sad. Equal Rights Trust interview with representative of the firm for audit and financial reporting, 17 January EqualRights Trust interviewrepresentative with ofthe provincialresponsibleauthority for family ac accessible to everyone. vincial Secretariat […],butthese mediaisneither available nor inceVojvodina,of thedaily newspapersandon website theof Pro concerns about“fitting”into theworkplace environment. or employees other from resistance citing person, LGBT an employ not would they that indicated five person, LGBT an employing oppose not would they indicated respondents sector private most while Similarly, dividuals becausethey would not“fit”into theworkplace environment. Romaemployingthreea person, indicatedhirethey would not Roma in While mostprivate sector respondents indicated they would not oppose 211 212 ------Five private sector respondents indicated that they would not employ a in practice equality

Muslim women wearing traditional clothes (including a head covering) workplaceon the basis environment. that this would be contrary to a “no religion at work” rule Fourand, similarly,private sector citing respondents concerns about expressed such doubts employees about “fitting” employing into per the

sons living with HIV/AIDS. enforcement and implementation of Serbia’s laws equality

Awareness of Specific Obligations under Serbia’s Equality Laws

The respondents from public sector organisations were, in general, unaware of equalitythe specific laws. obligations with respect to non-discrimination that apply in their particular sectors, such as housing, healthcare or education, under Serbia’s to a workplace to accommodate the needs of a persons with disabilities under Most respondents were aware of the obligation to make technical modifications the LPDPD; however, one respondent insisted, incorrectly, that the obligation213 makeonly arises the necessary “if the disability adaptations. has occurred during the work for the employer”, while another insisted that “the 214state should be obliged, not the employer” to tives surveyed stated that their premises Significantly, are fully when accessible. asked about the accessibility of their premises, only two of the 13 private sector company representa-

Most respondents were similarly aware of the obligation on companies with 20 to 49 employees to hire one person with a disability, and companies with 50 or themore companies employees interviewed to hire at forleast this two study persons indicated with much disabilities215 lower rates(with of the employ quota mentincreasing for persons by one with for eachdisabilities additional than 50 required employees). under the However, legislation. a number of - edgedMost respondentsthat they were were not also complying aware ofwith obligations216 the obligation imposed or expressed under the the LGE view on employers with more than 50 employees. However, some respondents acknowl- that compliance was “not possible” which raises questions about the monitoring of compliance with the LGE. tialIn general, equality respondents of certain groups. were not One aware exception that their was organisationsan employee ofhad a provincialtaken any special measures in order to eliminate inequalities, or to achieve the substan-

213 Equal Rights Trust interview with representative of the firm for production of leather accessories, 21 December 2017, Vranje. 214 Equal Rights Trust interview with representative of the firm for insurance services, 6 December 2017, Belgrade. 215 Law on Professional Rehabilitation and Employment of Persons with Disabilities, “Official Gazette of the 119 Republic of Serbia”, No. 36/2009, Article 24, Para 3. 216 See above, for example, note 14, Articles 12–13. 120 EQUAL RIGHTS TRUST cial independence. reform is needed to address delays incourtproceedings and to strengthen judi rolemines its enforcingin Serbia’s under lawsequality indicates and institutional that significantly redress of form independent and efficient an as judiciary the in confidence public Finally,of facilities. lack court the of inaccessibility the and persons located in regional areas face additionalbarriers to justicedueto disabilities with persons addition, In Serbia. in discrimination of survivors for justice to access to barriers major constitute fees court significant and aid legal this respect in Part Four of the study. Further, the current lack of publicly-funded bearers.Weduty and recommendationsholders specific in of number a include address the persistently low levels ofawareness of thelaws amongstbothrights To ensure the enforcement of Serbia’s equality laws in practice, it is necessary to absence ofpractical measures to ensure itseffective enforcement inpractice. bodies. However, Serbia’s equality framework is significantly undermined by the non-judicial and judicial by laws equality its of enforcement and remedies tive some aspectsofthe including Serbia has in place a strong legal framework on equality and non-discrimination, Conclusion tions intheserespects inPart Four ofthestudy. and process for providing refresher training. We provide detailedrecommenda those personnelwho have receivedlaw equality training organisationan within of database a as such knowledge, equality institutional retain to how consider particularly under the LPD. The design of additional training programs mustalso prevalence of discrimination, and their obligations under Serbia’s equality laws, a rangeis clearthat It ofmeasures are needed to increase theirawareness of the laws remain concerningly lowand private amongstpublic sector duty bearers. awarenesslevelsSerbia’sof that indicateof equality findings our conclusion, In call for applicationsfor government funding: authority who gave thefollowing exampleof positive actionby thestate inits 217

27 November 2017,Novi Sad. Equal Rights Trust interview with representative of the provincial authority for economy and tourism, and economy for authority provincial the of representative with interview Trust Rights Equal portion ofwomen inthe ownership ofthe company, as well ason ber ofpointswillbegiven [to applicants]on the basisofthe pro [T]he criteria for granting offundsprovides that acertain num that legal entity. thetheof basis employed number of persons with disabilitiesin 217 legal structureto facilitate toaccess effecjustice, ------

4. RECOMMENDATIONS

This Part sets out recommendations directed to the government of Serbia. The recommendations are made in order to enable Serbia to meet its obligations nation and equality. under international law to respect, protect and fulfil the rights to non-discrimi- The recommendations have been developed collaboratively by the Equal Rights

Trust, Praxis, Sandzak Committee and the members of the project Working Group: Mental Disability Rights Initiative; Gayten; Tamara Lukšić Orlandić (independent expert); Autonomous Women’s Centre; S-KRUG League of Roma; and Grupa 484. The recommendations were developed following detailed discussion Theand recommendationsconsideration of the focus conclusions on priority reached measures in Parts that 1,are 2 requiredand 3 of tothis strengthen report. the enforcement and implementation of Serbia’s existing legal framework on equality. This is a deliberate choice. It is hoped that, by focusing first and foremost on these priority areas, progress towards compliance with Serbia’s international equality obligations, may accelerate. Recommendation 1: Increase public awareness of Serbia’s equality laws and methods of enforcement

The Serbian government must ensure that all persons in Serbia have access to information about the phenomenon of discrimination and their rights and obli

- gations under Serbia’s equality laws, to enable them to effectively promote and claim those rights, and to respect the rights of others. Given the persistently low thatlevels involves of public the awareness whole of government of Serbia’s equality and is developed laws that inare consultation documented with in Part the Three of the report, the government should develop a multi-layered strategy This will build on the public awareness raising work that has previously been undertakenCommissioner by forthe theCommissioner Protection ofand Equality civil society. (Commissioner)and The strategy for civil increasing society. include measures such as: public awareness of Serbia’s equality laws and methods of enforcement could

Introduction of units on equality and non-discrimination in primary and secondary school syllabi under the supervision of the Ministry of Educa- 121 tion, Science and Technological Development and the involvement of the Commissioner; 122 EQUAL RIGHTS TRUST to affordable and accessible remedies for violations of Serbia’s equality laws, including by takingmeasures to: equality Serbia’s of violations for remedies accessible and affordable to The Serbiangovernment shouldensure persons in Serbiaall that have access Increase access to justice by removing financialandphysical barriers broadcaster to produce amonthly television broadcast thatsummarises television national the and Commissioner the Information, and Culture of Ministry the between collaboration a support to resources and Funding laws; to Commissioner Serbia’suser-friendlyon distributeprepare, guides and equality publish the of Office the to allocated resources and Funding enforce theirrights underSerbia’s equalitylaws. to discrimination of victims enable to laws equality Serbia’s of standing vide training to membersof thelegalprofession to increase theirunder proto Association Bar the initiativesand Support Commissioner bythe out thecountrywhich prevent theaccessofany personthecourts. currentlybarriers that existrespectwith to the courts located through Conduct acomprehensive auditofthephysical andother accessibility fees are notprevented from enforcing theirrights. the pay toafford cannot who those that ensure to laws Serbia’s equality Reduce or remove thecourtfees associated with legalproceedings under based incivil societyorganisations. bia’s equality laws, whether those practitioners are in private practice or and representationfrom persons existingwith expertise regarding Ser ensureernment should individuals that are to able accesslegaladvice arising under Serbia’s equality laws. In designing such a scheme, the gov es to individualswho areto unable afford for legalservices for matters adequately-fundedprovideto an servic scheme legalEstablish aid legal to thenationalbroadcaster, comprisingmembersofcivil society. Broadcaster (RTS) Service Program Council Public which is National a specialist advisorythe council with consultation in done be should series from vulnerablegroups who experience discrimination. The production ofthe persons including characters, of range diverse a featuring series tion and the national television broadcaster to produce a fictional drama Support for a collaboration between the Ministry of Culture and Informa cent complaintsofdiscrimination thattheCommissioner hasinvestigated. the work of the Commissioner. Thiscouldincludeinformation aboutre Recommendation 2:

------Recommendation 3: in practice equality Ensure the independent, efficient and effective enforcement of Serbia’s equality laws by the judiciary strengthen the enforcement of equality laws by the judiciary by improving The Serbian government, and the Ministry of Justice, in particular, should additional technical support for judges on the operation of equality laws. This includessafeguards taking for judicialthe following independence, measures: addressing court delays and providing recommendations

Strengthen the independence of the judiciary by making necessary amendments to the constitutional and legislative framework to remove

the potential for undue political interference,1 such as those recommended by the European Commission in its most recent report on Serbia’s accession to the European Union (EU). Reduce court delays, particularly in matters relating to Serbia’s equality laws. This could include taking measures to2 ensure efficient judicial ad- Provideministration, additional as identified technical by support the European to the judiciary Commission and judicial in its most person recent report on Serbia’s accession to the EU. laws. This should include the provision of resources and support for a- trainingnel to increase program judges’ to be knowledge operated withof the the operation involvement of Serbia’s of the equalityJudicial Academy and Commissioner.

Recommendation 4: Strengthen the enforcement of equality laws by the Commissioner for the Protection of Equality

The Serbian government should ensure the full and effective enforcement of the it should conduct a full review of the powers of the Commissioner and the funding allocatedLaw on the to Prevention the Commissioner of Discrimination to determine (LPD) whether by the Commissioner.both are adequate In particular, to ensure that the Commissioner can effectively enforce the LPD. The review should con

- sider, in particular, the feasibility and appropriateness of the following measures:

The conferral of additional powers on the Commissioner, pursuant to an needamendment for receipt of the of LPD,a complaint. to initiate The litigation conferral for of violations such powers of the is supportLPD and to investigate reports of discrimination on its own motion, without the -

1 EU Commission Report, 2018, page 14. 2 EU Commission Report, 2018, page 13: “ensure that the High Judicial Council and the State Prosecutorial implementCouncil can a fully human assume resources their strategyrole and for achieve the entire a coherent judiciary and including efficient the judicial establishment administration of a uniform in line with European standards, including regarding the management of the judicial budget”; and “adopt and

and functioning case management system, which will in combination lead to a measurable improvement in efficiency and effectiveness of the justice system”. 123 124 EQUAL RIGHTS TRUST this respect, thegovernment shouldtake measures to: In laws. equality Serbia’s under obligations their and discrimination, of sector privateand state the awarenessincreasingduty-bearerslawsbyin amongst ity The Serbian government should ensure effective compliance with Serbia’s equal Increase awareness of,andcompliance with,Serbia’s equalitylaws ficient to enable the Commissioner to exercise its full range of functions of range full exercisetoits Commissioner the enable to ficient suf is Commissioner the of Office the to allocated funding the Whether ferred on the Office of the Protector of Citizens (Serbian Ombudsperson); crimination reported in thepress and is consistent withthepowers con wouldthe Commissioner enable to swiftly respond to allegations of dis ed bylarge a numberofcivilsociety organisations it onthebasisthat base, maintained by thestate atthenational,regional andlocallevels. knowledge through the creation ofanationalequality law training data Implement asystem allowing for theretention ofinstitutionalequality law on equalitylaw for private sector entities. the SerbianUnion ofEmployers to providestructured a trainingprogram society organisations, the Chamber of Commerce, the Commissioner, and Provide funding and resources to supportacollaboration between civil priate coverage. implement atraining monitoring and evaluationsystem to ensure appro Ministry of Labour, Employment, Veterans and Social Issues to adopt and Provide funding andresources to support acollaboration between the government level to bedesigned incollaboration withtheCommissioner.local and regional national, the at laws equality Serbia’s on officials lic Provide funding andsupport for a systematic training program for pub with thesubstantive content oftheCommissioner’sreports. Assembly National the indi in engagement little currently is organisations there that cated society civil of number A LPD. the of 33(5) Article reports andspecialreports submitted by theCommissioner topursuant Assembly takes into consideration thematters contained in theannual National the that ensure to required are measures additional Whether tion oftheProtector ofCitizens. and stature of theCommissioner and would be consistentthe posi with entrenchment of theCommissioner would strengthen theindependence A numberof civil society organisations considered constitutional that throughwouldamendment constitutional a appropriatebe effective. and Whether the entrenchment oftheCommissioner in theConstitution mendations 3and4). (Recom LPD the of operation the regarding actors non-state and state judiciary, the of training in upon drawn be could which Commissioner the of expertise the and 1), (Recommendation LPD the of awareness lic in identified need of levelthe present report for theCommissioner to contribute to greater pub high the given particularly LPD, the under by duty-bearers inthestate andprivate sector Recommendation 5:

------Recommendation 6: in practice equality Review Serbia’s legal framework to ensure consistency with international law and best practice on the rights to equality and non-discrimination

ommendWhile it is that the SerbiaTrust’s should recommendation keep its existing that the legal focus framework of efforts on should equality be, firstand and foremost, on the proper enforcement of existing equality laws, we also rec- recommendations non-discrimination under regular review with a view to improving its compat- andibility policies with the which rights do notto equality fully enshrine and non-discrimination the right to equality. as defined under the international instruments to which it is party, by amending laws, regulations

Recommendation 7: Strengthen international commitments related to equality

Serbia should ratify the following European and United Nations human rights instruments, which are relevant to the rights of equality and non-discrimination: European Convention on Nationality (1997). International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990). The OptionalThird Optional Protocol Protocol to the toInternational the Convention Covenant on the on Rights Economic, of the Social Child and Cultural Rights (2008).

(communicative procedure) (2011). Recommendation 8: Data collection on equality of quantitative data in relation to key indicators of equality in Serbia. State During the research for this report, it has been established that there is a lack authorities should collect and publicise information, including relevant statistics, in order to identify inequalities, discriminatory practices and patterns of shoulddisadvantage, be disaggregated and to analyse in order the effectiveness to demonstrate of measures the different to promote experiences equality. of Wherever statistics are collected in relation to key indicators of equality, they shoulddisadvantaged further ensure groups that within such Serbian information society. is notHate used crime in a statistics manner that must vio be latescollected human and rights. publicised, including statistics on gender-based violence. Serbia -

125 126 EQUAL RIGHTS TRUST tion thathasalready beenachieved. Serbia equality, promote to should not allow any regression from the level of protection against discrimina policies and laws implementing and adopting In Prohibition ofRegressive Interpretation Recommendation 9:

- Annex 1: Focus Groups and Interviews Conducted

Focus Groups 1. comprising of CSO representatives and survivors of discrimination. Focus group held on 1 November 2017 in Niš attended by 17 persons 2.

discrimination.Focus group held on 10 November 2017 in Belgrade attended by 21 persons comprising of CSO representatives, lawyers and survivors of sons comprising of CSO representatives and survivors of discrimination. 3. Focus group held on 15 November 2017 in Novi Pazar attended by 14 persons comprising of CSO representatives and survivors of discrimination. 4. Focus group held on 8 December 2017 in Pančevo attended by 13 persons comprising of CSO representatives and survivors of discrimination. 5. Focus group held on 21 December 2017 in Vranje attended by 13 per- One-to-One Interviews 1.

Interview held on 1 February 2018 with the Commissioner for Protec- 2. tion of Equality on 1 February 2018. Interview with the Director of the Office for Human and Minority Rights on 6 February 2018. Legal Experts 1.

Interview with representative of the Legal Clinic in Niš on 27 December 2. 2017 in Niš. Interview with professor of the Law Faculty in Belgrade on 23 January 2018 in Belgrade. 3. Interview with professor of the Law Faculty in Novi Sad on 28 Novem- ber 2017 in Novi Sad. 4. Interview with judge of the Appellate Court in Belgrade on 23 Novem- ber 2017 in Belgrade. 5. Interview with lawyer from Novi Sad on 28 November 2017 in Novi Sad. 127 128 EQUAL RIGHTS TRUST Government OfficialsorEmployees ofGovernment Bodies 13. 12. 11. 10. 9. 8. 7. 6. 5. 4. 3. 2. 1. 8. 7. 6. 15. 14. Interview withrepresentative oftheMinistryfor Veteran Employment, for demography andgenderequalityon15January2018inNovi Sad. Interview withrepresentative oftheprovincial authorityresponsible for integration ofRoma on27November 2017inNovi Sad. Interview withrepresentative oftheprovincial authorityresponsible ber 2017inBelgrade. Interview withrepresentative oftheMinistryJustice on24Novem for minority integration on23January2018 inBelgrade. Interview withrepresentative ofthelocalself-government, department adoption on22December2017inNiš. Interview withrepresentative oftheregional center for housingand and tourism on27November 2017inNovi Sad. Interview withrepresentative oftheprovincial authorityfor economy 2017 inNiš. Interview withrepresentative oftheUniversity ofNišon27December for socialprotection on14December2017 inPančevo. Interview withrepresentative ofthelocalself-government, department for educationon27December2017inNiš. Interview withrepresentative ofthelocalself-government, department 2017 inNiš. Interview withrepresentative oftheFaculty ofLaw on22December 2017 inNovi Sad. Interview withrepresentative oftheBarChamberon27November 2017 inBelgrade. Interview withrepresentative oftheJudicialAcademy on23November 2017 inNovi Sad. Interview withjudgeoftheHigher CourtinNovi Sadon28November Interview withlawyer from Pančevo on8December2017inPančevo. grade. Interview withlawyer from Belgrade on23November 2017inBel December 2017 inNiš. Interview withrepresentative oftheregional healthinstitutionon 22 December 2017inPančevo. Interview withrepresentative ofthecentre for socialprotection on14 and SocialProtection on24 November 2017inBelgrade. - - equality in practice equality

16. Interview with representative of the regional health institution on 15 January 2018 in Novi Sad. 17. Interview with representative of the local self-government responsible forInterview local security with representative and safety on of 11 the January provincial 2018 authority in Leskovac. responsible for 18.

19. family accommodation and adoption on 15 January 2018 in Novi Sad. annexes Interview with representative of the Ministry of Culture and Informa- 20. tion on 6 December 2017 in Belgrade. Interview with representative of the Ministry of Education on 23 Janu- 21. ary 2018 in Belgrade. Interview with representative of the local self-government, department 22. for advancement of Roma inclusion on 21 December 2017 in Vranje. Interview with representative of the elementary school on 6 December 2017 in Belgrade. 23. Interview with representative of the secondary vocational school on 13 December 2017 in Vršac. 24. Interview with representative of the Provincial Assembly on 15 January 2018 in Novi Sad. 25. Interview with representative of the local self-government, protection of the rights of patients on 12 January 2018 in Novi Sad. 26. Interview with representative of the local self-government, department for gender equality on 11 December 2017 in Pančevo. 27. Interview with representative of the City Council on 4 December 2017 in Niš. 28. Interview with representative of the Women Parliamentary Network on 29. 6 December 2017 in Belgrade. Interview with representative of the Ministry of Health on 6 December 2017 in Belgrade. 30. Interview with representative of the local self-government, department for legal aid on 30 November 2017 in Kragujevac. 31. Interview with representative of the Institute for Social Sciences on 23 January 2018 in Belgrade. 32. Interview with representative of the Ministry of Interior on 17 January 2018 in Belgrade. 33. Interview with representative of the Ministry of Defense on 17 January 2018 in Belgrade. 129 34. Interview with representative of the local self-government, department for child protection and social welfare on 23 January 2018 in Belgrade. 130 EQUAL RIGHTS TRUST Private Sector Employees 13. 12. 11. 10. 9. 8. 7. 6. 5. 4. 3. 2. 1. November 2017inJagodina. Interview withemployee ofthefirmfor production offurniture on30 ber 2017inBelgrade. Interview withemployee ofthefirmfor insurance serviceson6Decem 2017 inBelgrade. Interview with employee of the firm for air conditioning on 6 December November 2017inNovi Sad. Interview withemployee ofthefirmfor computer engineeringon28 tion on13December2017inZrenjanin. Interview withemployee ofthefirmfor steam andhotwater produc ries on21December2017inVranje. Interview withemployee ofthefirmfor production ofleatheraccesso ary 2018inBelgrade. Interview withemployee ofthefirmfor airtraffic serviceson17Janu tal instrumentsandmaterials on28November 2017inNovi Sad. Interview withemployee ofthefirmfor production ofmedicaland den cember 2017inNiš. Interview withemployee ofthefirmfor computer consultingon4De pressors on17January2018inBelgrade. Interview withemployee ofthefirmfor production ofpumpsand com infrastructure on30November 2017in Interview withemployee ofthefirmfor constructionofhydro-technical ber 2017inKragujevac. tenance ofequipmentatpetrol stationsandwarehouses on30Novem Interview withemployee ofthefirmfor production, serviceandmain on 17January2018inBelgrade. Interview withemployee ofthefirmfor auditandfinancialreporting Ćuprija . ------Annex 2: Topics Covered in Interviews Conducted

The interviews with representatives from the private sector covered the follow ing topics: -

General information about the business (year of establishment, data on employees (gender, ethnicity, disability, age), number of women in tionleadership laws and positions); to what extent the prohibition of discrimination is re Their knowledge about prohibition of discrimination, anti-discrimina- Awareness of the prevalence of discrimination in society and the most- spected in society; vulnerable groups; Scope of the prohibition of discrimination – public and/or private bodies; IssuesKnowledge encountered and awareness in implementing of the obligations and complying under anti-discrimination with their legal law; obligations with respect to anti-discrimination law; Obligations under the LGE; Reasonable accommodation for persons with disabilities; General impact on the LPD; AvailabilityEmployment and policies, accessibility equality of and services diversity to different management marginalised and internal policies (equality and non-discrimination); groups; tionAny claimslaws is ofneeded. discrimination made by employees; and Opinion on whether training on legal obligations under anti-discrimina- The interviews with representatives from the public authorities covered the fol lowing topics: - Awareness of the prevalence of discrimination in society and prevalence

of discrimination in their sector; Awareness and knowledge of the obligations under anti-discrimination law – for public authorities in general and for their respective sectors; General impact on the LPD; Current anti-discrimination framework – effectiveness/ineffectiveness; The state’s effectiveness in combating, and providing protection from, discrimination; Their sector/institution’s effectiveness in combating, and providing protection from, discrimination; 131 132 EQUAL RIGHTS TRUST tion; and forand challenges Obstacles vulnerablegroups intheirsector/institu sector for theadvancement ofthepositionvulnerable groups; Knowledge/awareness of positive actionmeasures introduced in their taken to prevent discrimination intheirsectors; Knowledge andfamiliarity withmeasures andeffects ofthemeasures pno o wehr riig n nidsrmnto fr mlye is employees for needed. anti-discrimination on training whether on Opinion - Annex 3: Civil Laws that Contain Protection for the Right to Non-Discrimination in Serbia

Health

Law on Health Protection, “Official Gazette of the Republic of Serbia”, Nos. 107/05, 72/09 – other law, 88/10, 99/10, 57/11, 119/12, 45/13 – other law, 93/14, 96/15 and 106/15. Law on Health Insurance, “Official Gazette of the Republic of Serbia”, Nos. 107/2005, 109/2005 – correction, 57/2011, 110/2012 – decision of the CC, 119/2012, 99/2014, 123/2014, 126/2014 – decision of the CC, 106/2015 and 10/2016 – other law. Law on the Protection of Persons with Mental Disabilities, “Official Ga - zette of the Republic of Serbia”, Nos. 45/13. Law on Patients’ Rights, “Official Gazette of the Republic of Serbia”, No. 45/13. Law on Prevention and Diagnostics of Genetic Diseases, Genetically Caused Anomalies and Rare Diseases, “Official Gazette of the Republic of Serbia”, No. 8/2015. Law on the Protection of Population from Infectious Diseases, “Official Gazette of the Republic of Serbia”, No. 15/2016. Law on Public Health, “Official Gazette of the Republic of Serbia”, No. 15/16. Education

Law on Foundations of the Education System, “Official Gazette of the Republic of Serbia”, Nos. 72/2009, 52/2011, 55/2013, 35/2015 – auth. interpretation, 68/2015 and 62/2016 – decision of the CC. Law on Preschool Education, “Official Gazette of the Republic of Serbia”, No. 18/2010. Law on Primary Education, “Official Gazette of the Republic of Serbia”, No. 55/13. Law on Secondary Education, “Official Gazette of the Republic of Serbia”, No. 55/13. Law on Education of Adults, “Official Gazette of the Republic of Serbia”, No. 55/13. Law on High Education, “Official Gazette of the Republic of Serbia”, Nos. 76/2005, 100/2007 – auth. interpretation, 97/2008, 44/2010, 93/2012, 89/2013, 99/2014, 45/2015 – auth. interpretation, 68/2015 and 87/2016. Law on Scientific-Research Activity, “Official Gazette of the Republic of Serbia”, Nos. 110/2005, 50/2006 – correction, 18/2010 and 112/15). 133 134 EQUAL RIGHTS TRUST Social Protection,Social Pension Housing, andDisabilityInsurance Employment andLabourLaw Rulebook oncriteria andprocedures for high schoolenrolment under full equality, “OfficialGazette oftheRepublic ofSerbia”, No.12/2016. rolment undermore favorable conditionsfor thepurposeofachieving Rulebook oncriteria andprocedures for Roma studenthigh schoolen No. 68/15. The Law onTextbooks, “OfficialGazette oftheRepublic ofSerbia”, Republic ofSerbia”, No. 104/2016. Law onHousingandMaintenance ofBuildings,“Official Gazette ofthe Gazette oftheRepublic ofSerbia”, No.18/2016. Bylaw (Decree) ondedicated transfers insocialprotection, “Official Protection, “OfficialGazette oftheRepublic ofSerbia”, No.8/2012. Rulebook onProhibited Behaviour/Treatment ofEmployees inSocial tection services,“Official Gazette ofthe Republic ofSerbia”, No.42/201. Rulebook ondetailedconditionsandstandards for providing socialpro No. 24/2011. Law onSocialProtection, “OfficialGazette oftheRepublic ofSerbia”, of theRepublic ofSerbia”, No.102/2016. woman duringpregnancy, maternity andbreastfeeding, “OfficialGazette Rulebook onmeasures for thesafe andhealthy work ofanemployed Serbia”, Nos.101/05 and91/15. Law onSafety andHealthatWork, “OfficialGazette oftheRepublic of Republic ofSerbia”, No.36/2010. Law onPrevention ofMobbing(Abuse at Work), “OfficialGazette ofthe and 32/2013. with Disabilities,“OfficialGazette oftheRepublic ofSerbia”, Nos.36/09 The Law onProfessional Rehabilitation andEmployment ofPersons Gazette oftheRepublic ofSerbia”, Nos.36/09,88/2010and38/2015. Law onEmployment andInsurance “Official inCaseofUnemployment, 61/05, 54/09,32/2013,75/2014and13/2017–decisionoftheCC. Labour Law, “OfficialGazette oftheRepublic ofSerbia”, Nos.24/05, Republic ofSerbia”, No.75/2016. ing aids,didacticaltool anddidacticalplay tools, “OfficialGazette ofthe and teaching materials, aswell asapproved teaching materials, teach and providing expert opiniononthequalityofdraft textbooks, manuals Rulebook onthemanner and procedure for giving expert assessment “Official Gazette oftheRepublic ofSerbia”, No.22/2016. members, children, studentsorthird partyinaneducationalinstitution, Rulebook ondetailedcriteria for detecting discriminationby staff adults, “OfficialGazette oftheRepublic ofSerbia”, No.42/2016. those studentswho have completed elementaryschooleducationas more favorable conditionsfor thepurposeofachieving fullequalityof

- - - in practice equality of priority of tenants of apartments built within the program of social Bylaw (Decree) on conditions and criteria for determining the order housing, “Official Gazette of the Republic of Serbia”, No. 140/2014. Law on Pension and Disability Insurance, “Official Gazette of the Re- public of Serbia”, Nos. 34/2003, 64/2004 – decision of the CC, 84/2004 – other law, 85/2005, 101/2005 – other law, 63/2006 – decision of

the CC, 5/2009, 107/2009, 101/2010, 93/2012, 62/2013, 108/2013, annexes 75/2014 and 142/2014. Law on Contributions for Mandatory Social Insurance, “Official Gazette of the Republic of Serbia”, Nos. 84/2004, 61/2005, 62/2006, 5/2009, 52/2011, 101/2011, 7/2012 – adjusted amount in dinars, 8/2013 – adjusted amount in dinars, 47/2013, 108/2013, 6/2014 – adjusted amount in dinars, 57/2014, 68/2014 – other law, 5/2015 – adjusted amount in dinars, 112/2015, 5/2016 – adjusted amount in dinars and 7/2017 – adjusted amount in dinars. Access to Goods and Services

Law on Trade, “Official Gazette of the Republic of Serbia”, Nos. 53/2010 and 10/2013. Law on Electronic Commerce, “Official Gazette of the Republic of Ser- bia”, Nos. 41/2009 and 95/2013. Law on the Chamber of Commerce, “Official Gazette of the Republic of Serbia”. No. 112/2015. Law on Communal Activities, “Official Gazette of the Republic of Serbia”, Nos. 88/2011 and 104/2016. Law on Energy, “Official Gazette of the Republic of Serbia”, No. 145/2014. Bylaw on conditions of electricity distribution and supply, “Official Ga- zette of the Republic of Serbia”, No. 63/2013. Law on Consumer Protection, “Official Gazette of the Republic of Serbia”, Nos. 62/2014 and 6/2016 – other law. Insurance Law, “Official Gazette of the Republic of Serbia”, No. 139/2014. Law on Protection of Competition, “Official Gazette of the Republic of Serbia”, Nos. 51/2009 and 95/2013. Media, Public Information and Public Advertising

Law on Public Information and Media, “Official Gazette of the Republic of Serbia”, Nos. 83/2014, 58/2015 and 12/2016 – auth. Interpretation. Law on Electronic Media, “Official Gazette of the Republic of Serbia”, Nos. 83/2014 and 6/2016 – other law. Law on Public Service Media, “Official Gazette of the Republic of Serbia”, Nos. 83/2014, 103/2015 and 108/2016. Law on Advertising, “Official Gazette of the Republic of Serbia”, No. 6/2016. 135 136 EQUAL RIGHTS TRUST Nationality, Citizenship andImmigration Law Culture, Youth Sport, Public GatheringandAssociation Law onFree Access to Information ofPublicImportance,“OfficialGa Serbia”, Nos.44/2010, 60/2013–decisionoftheCC and62/2014. Law onElectronic Communications,“OfficialGazette oftheRepublic of Gazette oftheRepublic ofSerbia”, No.101/2016. Rulebook onadvertising andsponsorshipinelectronic media,“Official Gazette of theRepublic ofSerbia”, No.59/2009. Ministry ofthe Interior on thebasisofLaw onForeigners, “Official Rulebook on themannerofkeeping andcontent oftherecords in the lic ofSerbia”, No.128/2014. Law onEmployment ofForeign Citizens,“OfficialGazette oftheRepub 97/2008. Law onForeigners, “OfficialGazette oftheRepublic ofSerbia”, No. Law onAsylum, “Official Gazette ofthe Republic ofSerbia”, No.109/2007. 10/2010, 25/2011,5/2013and94/2013. Gazette oftheRepublic of Serbia”, Nos. 109/2009,4/2010–correction, Guidance onthemanagementofregistry books andforms, “Official Nos. 20/2009and145/2014. Law onRegistry Books, “Official Gazette oftheRepublic ofSerbia”, Republic ofSerbia”, Nos.135/2004and90/2007. Law onCitizenshipoftheRepublic ofSerbia, “OfficialGazette ofthe Law onYouth, “OfficialGazette oftheRepublic Serbia”, No.50/11. 104/2013 –otherlaw. 101/2005 –otherlaw, 90/2007,72/2009–otherlaw, 111/2009and Sports Events, “OfficialGazette oftheRepublic ofSerbia”, Nos.67/2003, Law onPrevention ofViolenceandInappropriate Behavior at Law onSports, “OfficialGazette oftheRepublic ofSerbia”, No.10/2016. Serbia”, No.58/2012. or aprominent expert inculture, “OfficialGazette oftheRepublic of Rulebook onthecriteria for acquiringthestatusofaprominent artist, 72/2009, 13/2016and30/2016–correction. Law onCulture, “OfficialGazette oftheRepublic ofSerbia”, Nos. Nos. 51/2009and99/2011–otherlaw. Law onAssociations,“OfficialGazette oftheRepublic ofSerbia”, No. 6/2016. Law onPublicGatherings, “OfficialGazette oftheRepublic ofSerbia”, 36/2010. zette oftheRepublic ofSerbia”, Nos.120/2004,54/2007,104/2009and

- - in practice equality

Law on Migration Management, “Official Gazette of the Republic of Ser- bia”, No. 107/2012. Rulebook on social assistance for persons seeking or granted asylum, “Official Gazette of the Republic of Serbia”, Nos. 44/2008 and 78/2011. Family Law

annexes

Family Law, “Official Gazette of the Republic of Serbia”, No. 18/2005, 72/2011 and 6/2015. Law on Prevention of Domestic Violence, “Official Gazette of the Repub- lic of Serbia”, No. 94/2016. RulebookLaw on Financial on detailed Assistance conditions to Families and manner with Children,of exercising “Official the right Gazette of the Republic of Serbia”, Nos. 16/2002, 115/2005 and 107/2009.

to financial support to the family with children, “Official Gazette of the Republic of Serbia”, Nos. 29/2002, 80/2004, 123/2004, 17/2006, 107/2006, 51/2010, 73/2010 and 27/2011 – decision of the CC. National Minorities, Churches and Religious Communities Law on Protection of Rights and Freedoms of National Minorities, “Official Gazette of the SR Yugoslavia”, No. 11/2002, “Official Gazette of decisionthe Serbia of and the Montenegro”,CC. No. 1/2003 – the Constitutional Charter, “Official Gazette of the Republic of Serbia”, Nos. 72/2009 and 97/2013 –

RulesLaw on on National the work Minority of the electoral Councils, boards “Official for Gazette the direct of theelections Republic for of Serbia”, Nos. 72/2009, 20/2014 – decision of the CC and 55/2014.

members of national councils of national minorities, “Official Gazette of the Republic of Serbia”, No. 98/2014. Bylaw on the procedure for allocating funds from the budget of the Re- public of Serbia for financing the work of national councils of national Instructionsminorities, “Official for conduct Gazette of electoral of the Republic assembly of Serbia”,for election Nos. of 95/2010 members and 33/2013.

Conclusionof national councilson measures of national to increase minorities, the participation “Official Gazette of members of the Re ofpublic of Serbia”, No. 113/2014.

national minorities in state administration bodies, “Official Gazette of the Republic of Serbia”, No. 40/2006. Law on the Churches and Religious Communities, “Official Gazette of the Republic of Serbia”, No. 36/2006. Rules on the Contents and Manner of Keeping the Register of Churches and Religious Communities, “Official Gazette of the Republic of Serbia”, No. 64/2006. Law on Restitution of Property to Churches and Religious Communities, “Official Gazette of the Republic of Serbia”, No. 46/2006. Regulation on the Payment of Contributions for Mandatory Pension and Disability Insurance and Health Insurance for Priests and Religious 137 Officials, “Official Gazette of the Republic of Serbia”, No. 46/12. 138 EQUAL RIGHTS TRUST Security Sector Gazette oftheRepublic ofSerbia”, No.22/2011. Regulation onReligious ServiceintheSerbian ArmedForces, “Official Gazette oftheRepublic ofSerbia”, No.46/2001. and anAlternative SubjectintheElementaryandHigh Schools,“Official Regulation ontheOrganization andRealization ofReligious Education bia”, Nos.129/2007,83/2014–otherlaw and101/2016–otherlaw. Law onLocalSelf-Government, “OfficialGazette oftheRepublic ofSer Nos. 79/2005,101/2007,95/2010and99/2014. Law onState Administration, “OfficialGazette oftheRepublic ofSerbia”, State Administration andLocalGovernment zette oftheRepublic ofSerbia”, No.112/15. Law onReconstruction after Natural andOtherDisasters, “OfficialGa bia”, Nos.111/2009,92/2011and93/2012. Law onEmergency Situations,“OfficialGazette of theRepublic ofSer No. 86/2010. Military Intelligence Agency, “OfficialGazette oftheRepublic ofSerbia”, and Termination ofEmployment intheMilitarySecurityAgencyand Bylaw onSpecialCriteria andProcedures for Admission to Employment sion oftheCC and17/2013. ficial Gazette oftheRepublic ofSerbia”, Nos.88/2009,55/2012–deci Law onMilitarySecurityAgencyandIntelligence Agency, “Of 66/2014. of Serbia”, Nos.42/2002,111/2009,65/2014–decisionoftheCC and Law onSecurity-Information Agency, “Official Gazette oftheRepublic Law onPolice, “OfficialGazette oftheRepublic ofSerbia”, No.6/2016. 10/2015. 116/2007, 88/2009,88/2009–otherlaw, 104/2009–otherlaw and Law onDefense, “OfficialGazette oftheRepublic ofSerbia”, Nos. – decisionoftheCC. Nos. 116/2007,88/2009,101/2010–otherlaw, 10/2015and88/2015 Law ontheSerbian Army, “OfficialGazette oftheRepublic ofSerbia”, - - - - - Annex 4: List of Government Strategies Relevant to the Rights to Equality and Non-Discrimination in Serbia

Specific Anti-Discrimination Strategies

ActionStrategy Plan of Prevention for the Implementation and Protection of againstthe Strategy Discrimination, for Prevention“Official and Gazette of the Republic of Serbia”, No. 60/2013.

Protection Against Discrimination for the period 2014–2018, “Official Gazette of the Republic of Serbia”, No. 107/2014. National Strategy for Gender Equality 2016–2020 and the Action Plan for its implementation in the period 2016–2018, “Official Gazette of the Republic of Serbia”, No. 4/2016. Decision on the Establishment of the Coordination Body for Gender Equality, Government of Serbia, October 2014. – Decision on the Establishment of the Council for Suppression of Domestic Violence, “Official Gazette of the Republic of Serbia”, No. 69/2017. – General Protocol on the Procedure and Cooperation of Institu- tions, Bodies and Organizations in situations of Domestic Violence and Partnership Violence, Government of Serbia, November 2011. – Special protocol of the Ministry of Labor, Employment and Social casesPolicy of of domestic the Government violence of and the violence Republic against of Serbia women on the in pro part- cedures of centers for social work – guardianship authorities in - nership relations, March 2013. – Specialcases of protocol domestic of violence the Ministry and violence of Interior against of the women Government in part of the Republic of Serbia on the procedures for police officers in - nership relations, October 2012. – Special protocol of the Ministry of Health for protection and the treatment of women exposed to violence, June 2010. – Special protocol for the Judiciary in cases of domestic violence and violence against women in partnership relations, January 2014. Strategy for Social Inclusion of Roma Men and Women in the period 2016–2025,itoring “Official the Implementation Gazette of the of Republic the Strategy of Serbia”, for Social No. Inclusion26/2016. of – Decision of the Establishment of the Coordination Body for Mon-

Roma for the period from 2016 to 2025, “Official Gazette of the Republic of Serbia”, No. 17/2017.

139 140 EQUAL RIGHTS TRUST tion Other Strategies Relevant to theRights to Equality andNon-Discrimina National Strategy ofSocialHousing,“OfficialGazette oftheRepublic of of Serbia”, No.108/2005. Social Protection Development Strategy Republic ofSerbia”, No.22/2015. National Youth Strategy for Period 2015–2025, “OfficialGazette ofthe zette oftheRepublic ofSerbia”, No.107/12. Strategy for Development ofEducation in Serbia till2020,“OfficialGa of theRepublic ofSerbia”, No.37/11. National Employment Strategy for Period 2011–2020,“OfficialGazette No. 53/2017. of Serbia (2016–2020),“OfficialGazette oftheRepublic ofSerbia”, Council Resolution 1325–Women, Peace and SecurityintheRepublic National Action Planfor theImplementationofUnited NationsSecurity of theRepublic ofSerbia”, No.77/2017. Women andChildren andprotect victims2017–2022,“OfficialGazette Strategy ofPrevention andSuppression ofHumanTrafficking, especially Republic ofSerbia”, No.62/2015. Displaced Persons for theperiod2015–2020,“OfficialGazette ofthe National Strategy for Addressing theIssuesofRefugees andInternally “OfficialGazette oftheRepublicment, ofSerbia”, No.15/2009. Strategy ofReturnees’ Reintegration basedontheReadmission Agree Serbia”, No.59/2009. Migration ManagementStrategy, “OfficialGazette oftheRepublic of of Serbia”, No.63/2013. Sports Events in theperiod2013-2018,“OfficialGazette oftheRepublic National Strategy Against Violence andInappropriate Behavior at 2014–2018, “OfficialGazette oftheRepublic ofSerbia”, No.1/2015. Strategy on Development of SportinRepublic ofSerbia intheperiod No. 76/2006. National Strategy onAging Gazette oftheRepublic ofSerbia”, No.74/2010. Strategy onFree Legal AidDevelopment inRepublic ofSerbia Serbia”, No.13/2012. , “OfficialGazette oftheRepublic ofSerbia”, , “OfficialGazette oftheRepublic , “Official

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Convention on the Elimination of All Forms of Discrimination Against Women, 1249 U.N.T.S. 13, 1979. Convention on the Rights of Persons With Disabilities, 2515 U.N.T.S. 3, 2006. International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, 1965. International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, 1966. International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, 1966. Other International Treaties

Rome Statute of the International Criminal Court, 2187 U.N.T.S. 3, 1998. Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 1969. Resolutions

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Law on Foreigners, “Official Gazette of the Republic of Serbia”, No. 97/2008. Law on Foundations of the Education System, “Official Gazette of the Republic of Ser- bia”, Nos. 72/2009, 52/2011, 55/2013, 35/2015 – Auth. Interpretation, 68/2015 and 62/2016 – Decision of the CC. Law on Free Access to Information of Public Importance, “Official Gazette of the Republic of Serbia”, Nos. 120/2004, 54/2007, 104/2009 and 36/2010. bibliography Law on Health Insurance, “Official Gazette of the Republic of Serbia”, Nos. 107/2005, 109/2005 – Correction, 57/2011, 110/2012 – Decision of the CC, 119/2012, 99/2014, 123/2014, 126/2014 – Decision of the CC, 106/2015 and 10/2016 – Other Law. Law on Health Protection, “Official Gazette of the Republic of Serbia”, Nos. 107/05, 72/09 – Other Law, 88/10, 99/10, 57/11, 119/12, 45/13 – Other Law, 93/14, 96/15 and 106/15. Law on High Education, “Official Gazette of the Republic of Serbia”, Nos. 76/2005, 100/2007 – Auth. 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accessed 24 - - - Interviews and Meetings in practice equality

Equal Rights Trust focus group meeting, 1 November 2017, Niš. Equal Rights Trust focus group meeting, 10 November 2017, Belgrade. Equal Rights Trust focus group meeting, 15 November 2017, Novi Pazar.

Equal Rights Trust focus group meeting, 21 December 2017, Vranje. bibliography Equal Rights Trust focus group meeting, 8 December 2017, Pančevo. Equal Rights Trust interview with employee of the firm for computer engineering, 28 November 2017, Novi Sad. Equal Rights Trust interview with judge of the Appellate Court in Belgrade and with lawyer from Belgrade, 23 November 2017, Belgrade. Equal Rights Trust interview with lawyer from Novi Sad, 28 November 2017, Novi Sad. Equal Rights Trust interview with professor of the Law Faculty in Belgrade, 23 January 2018, Belgrade. Equal Rights Trust interview with professor of the Law Faculty in Novi Sad, 28 Novem- ber 2017, Novi Sad. Equal Rights Trust interview with representative of the Faculty of Law in Niš, 22 Decem- ber 2017, Niš. Equal Rights Trust interview with representative of the firm for air conditioning, 6 De- cember 2017, Belgrade. Equal Rights Trust interview with representative of the firm for audit and financial reporting, 17 January 2018, Belgrade. Equal Rights Trust interview with representative of the firm for insurance services, 6 December 2017, Belgrade. Equal Rights Trust interview with representative of the firm for production of leather accessories, 21 December 2017, Vranje. Equal Rights Trust interview with representative of the Legal Clinic in Niš, 27 December 2017, Niš. Equal Rights Trust interview with representative of the local self-government, Depart- mentEqual forRights Child Trust Protection interview and with Social representative Welfare, 23 January of the provincial2018, Belgrade. authority for econo - myEqual and Rights tourism, Trust 27 interview November with 2017, representative Novi Sad. of the provincial authority responsible for family accommodation and adoption, 15 January 2018, Novi Sad. Equal Rights Trust interview with representative of the regional health institution, 15 January 2018, Novi Sad. Equal Rights Trust interview with representative of the University of Niš, 27 December 2017, Niš. Equal Rights Trust interview with the Commissioner, 1 February 2018, Belgrade. 153 154 EQUAL RIGHTS TRUST L.N., CaseStudy Research Report to Equal Rights Trust, 2018. of Case Handicaps), With Students of hendikepom(Association sa studenata Udruženje Rights Trust, 2018. S.V.,Equal toof Research istraživačiReportStudyRomiResearchers), Case (Roma Case Rights Trust, 2018. Equal to ReportResearch Study Case S.J., of Case Researchers),istraživači(Roma Romi Rights Trust, 2018. Equal to ReportResearch Study Case L.J., of Case Researchers),istraživači(RomaRomi Rights Trust, 2018. Equal to ReportResearch Study Case B.J., of istraživačiCase Researchers),Romi(Roma to Equal Rights Trust, 2018. Mreža odbora za ljudska prava u Srbiji (CHRIS), Case of S.M., Case Study Research Report Trust, 2018. Da se zna! (It Should be Known!), Case of S., Case Study Research Report to Equal Rights Case Study Reports The Equal Rights Trust is the global centre for excellence in equality law. Our vision is an equal world and our mission is to eliminate discrimination and ensure everyone can participate in society on an equal basis. We work in partnership with equality defenders to secure the adoption and implementation of equality laws.

inter alia, evidence of aThis lack study of public identifies awareness the key of equality factors thatlaw andare concepts,preventing high Serbia’s court frameworkcosts, frag- mentedon equality legal from aid provision,providing effectivephysical andprotection. structural It finds, barriers preventing access Equality in Practice Equality to courts, procedural delays, mistrust in the judiciary, and weaknesses in the current legislative framework.