YUCOM 2013 – Annual Report
Publisher Lawyers’ Committee for Human Rights – YUCOM Svetogorska 17, 11000 Belgrade www.yucom.org.rs
For the Publisher Milan Antonijević
Editorial Board: Milan Antonijević, Natalija Šolić, Katarina Golubović, Nikola Grujić, Ivana Stjelja
Prepared by Ana Janković Dragan Ristić Ivana Stjelja Jean Baptist Merlin Jovana Spremo Katarina Golubović Kristina Todorović Kristina Tubić Kristina Vujić Marko Milenković Milan Antonijević Milena Vasić Nada Dželebdžić Natalija Šolić Nataša Lukić Nikola Grujić Slavko Arsović Tea Hadžiristić
Lecture Ljiljana Korica
Dessing BENUSSI design
Printed by Dosije studio
Print Run 500
ISBN 978-86-83209-50-7
The publication “YUCOM 2013-report on the work” was created within the project “Anti-discrimination mechanisms in practice” and “Strategic litigation in cases of vio- lations of human rights and the protection of human rights defenders” that are realized by Lawyers Committee for Human Rights - YUCOM with the financial support of the Embassy of Federal Republic of Germany in Serbia and Civil Rights Defenders. The views expressed in this publication do not necessarily reflect the views of German Embassy in Serbia and Civil Rights Defenders. Content
1 Foreword 5 2 FREE LEGAL AID: UNASSESSABLE VALUE OF HUMAN RIGHTS 8 3 SELECTED CASES OF ADVOCACY: SOCIALLY VULNERABLE AND HUMAN RIGHTS DEFENDERS IN THE PITFALLS OF INEFFICIENT JUDICIAL SYSTEM 12 4 ANTI-DISCRIMINATION MECHANISMS IN PRACTICE: THE WAY TO EQUAL OPPORTUNITIES FOR ADEQUATE HOUSING 32 5 LAWYERS’ COMMITTEE FOR HUMAN RIGHTS – YUCOM: PROMOTION, PROTECTION AND IMPROVEMENT OF HUMAN RIGHTS IN 2013 54 Y14 - YUCOM 2013 / Annual Report / No 1 Y1 Broj 1, Decembar 2013. YUCOM 2013 izveštaj o radu liticians, and other institutions and in- implementation of affirmative measures dividuals are reflected. to socially disadvantaged individuals so When you are defending citizens, that they could enhance their social status, representing them, trying to get an especially social housing as a basic mec- adequate response from the state, or hanism for providing adequate housing to a judgment, decision, or new legisla- the most vulnerable citizens. tion, it is expected that you see many Let me remind you that affirmative more imperfections of the system, and actions are defined by the Constitution of errors, both accidental and intentional. Serbia and covered by other regulations, It is not an indication that you want to but there remains a lack of understanding cause damage, but to establish a new and implementation. practice of human rights and to enable Our cooperation with the government, a wider range of people to enjoy their the National Assembly, certain ministries, guaranteed rights. We also pointed out and local government bodies shows that it positive examples from practice, whe- is recognized that human rights organi- re we are pleased with the quality and zations have their place in improving the speed of proceedings and the reactions human rights protection system, public of the authorities. All of this is necessary administration, as well as ameliorating 1 in order to obtain a balanced picture of the points of contact between citizens and the situation of human rights from the the state, such as in court, in drafting le- perspective of the organization that re- gislation, and in many other situations. presents citizens and works on strategic, We emphasize excellent cooperation legal, and other documents. with independent institutions such as the YUCOM has identified a large Ombudsman, the Ombudsman of Vojvo- number of individual cases of discri- dina, the Commissioner for Equality, the mination through years of work on the Commissioner for Information of Public improvement and promotion of hu- Importance and Personal Data Protecti- man rights, representation of citizens, on, as well as local ombudsman and many F analysis of regulations and policies, others who have made our work more vi- and monitoring of the work of public sible and more effective. In particular, we Foreword authorities and other activities. Also, highlight the media that have recognized we noted the presence of a more dan- the issues we deal with, and the hundreds December 2013, Belgrade gerous, systemic discrimination which of interviews and articles that are testa- is often indirect or hidden, making its ment to this. Milan Antonijević detection and the legal protection of And, at the end of this introduction, individuals subject to it much more we thank the many organizations in Ser- difficult. Equality in the exercise of the bia and in the region and beyond with rights is denied to the entire groups, so- whom we have worked, with which we When you stand before the results metimes because of the provisions and have agreed, and with which we have ar- of the work one of a year that is about the most important regulations them- gued in the interest of promoting human to end, you can either be satisfied with selves, but more often due to selective rights. the results or you can expect more. YU- enforcement of regulations by public We are especially pleased that during COM always strives for more and we authorities, to the detriment of the this year our team joined many young can hardly allow ourselves the time just groups who already experience stigma, professionals, as well as future experts, to enjoy what we have achieved. This prejudice and segregation in society. currently students of law and other facul- motivated us to approach the writing of Through the analysis of legal and policy ties, who helped in bringing new energy this report, which is not only an over- framework, monitoring of the implemen- into the organization, but also helped us view of the activities that we conducted, tation of policies of social housing and the see how the human rights in Serbia will but also of the highlights of many areas provision of legal aid in this area in 2013, develop. Only with young people who we dealt with in 2013. Through legal YUCOM sought to identify key obstacles have a sense of respect for human rights in help, citizens’ needs, trends in human in exercising the right to adequate housing this country can Serbia become an exem- rights violations and detection of errors of multiply socially endangered groups. plary country which would be pleasant to of the judicial system, government, po- The analysis focused on the definition and live in. Y1 YUCOM 2013 / Annual Report / No 1- 5 Y1 Broj 1, Decembar 2013. YUCOM 2013 izveštaj o radu
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F Free legal aid: L Unassessa- ble value of human A rights Lawyers’ Committee for Human different legal areas overlap. However, Rights - YUCOM has been very acti- for the year 2013 we can identify that ve in providing free legal aid from its the most common cases were those foundation in 1997 and it remains one pertaining to labour law - unlawful of our core activities. Currently, legal termination of employment, injuries, aid is provided by our legal team of mobbing, and other cases of violations three lawyers and three jurists. Parties of the rights of employees – and fami- may contact the legal team through our ly law - domestic violence and violen- online application form, as well as by ce against women, problems related mail and telephone. A free of charge to the exercise of parental rights, and telephone line (0700400700) has been problems with the collection of child activated in 2010 and every day a lar- support. There are frequent cases of vi- ge number of citizens call from across olation of the right to a fair trial within the country; we also often receive calls a reasonable time, and we increasingly from citizens of Serbia from abroad or receive calls from victims of various foreign citizens living in Serbia. forms of discrimination, hate speech, Annually, our legal team provides and hate crimes. Frequent cases in the legal aid services to over 800 parties. previous years included those in the They turn to us with a wide variety of fields of access to justice, discriminati- problems, which are sometimes diffi- on, police brutality and abuse of police cult to legally categorize, while several powers.
6 - YUCOM 2013 / Annual Report / No 1 FLA 2 Free Legal Aid: / unassessable value of human rights
Adequate legal aid is provided to citi- rities, the length of the proceedings, number of calls, and thus significantly zens regardless of their economic or other whether the parties have legal represen- increased number of provided legal aid status on the basis of which they could be tation ( which is particularly important services. excluded from receiving adequate legal given that we are addressed by a large In September, October and No- advice. Beneficiaries of our services are number of people who already have vember 2013 YUCOM provided 340 socially disadvantaged persons, Roma, a lawyer, but for some reason they do different services of free legal aid, of LGBT people, defenders of human rights, not have enough trust in them or want which: 218 instances of legal advice (in as well as many others whose rights have to hear a second opinion), then inve- 64% of total citizens’ requests sent to been violated. sted remedies and ultimately the way YUCOM), written and sent 42 urgen- When a request for free legal aid is they heard about YUCOM. The new cies and briefs to the public authorities received, the lawyer learns about the application form is used to process the (12 %), legal information was provi- specific subject and issues that the par- data in the second half of 2013. Below ded in 35 cases (10 %), legal advocacy ty has. If necessary, we ask for copies we present an overview and statistics of undertaken in 24 cases (7 %), and the of documents from the case, then, de- legal aid provided in September, Octo- party addressed, ie. the case referred to pending on the type and complexity of ber, and November 2013. In this peri- the competent authority in 20 cases, the case, in consultation with the legal od we also had a significantly increased or6 %. team, we provide legal advice. This may consist of a referral to the appropriate LEGAL AID regulation or authorized government body, interpretation of a law or assi- stance in preparing the brief. When necessary, we refer the parties to the 65% Advice appropriate state institution (such as the Ombudsman) or specialized 12% NGOs. In certain cases YUCOM pre- Information pares submissions for the party, which 10% is done in particularly complex and Briefs strategically important cases taken on 6% in representation. The legal team takes Referrals on the representation of individual ca- 7% ses before national courts, but also be- Representation fore the European Court for Human Rights and the UN Human Rights Committee. Representation and faci- litating access to legal information and U 58% slučajeva na tromesečnom je učinjeno prem ženama, prema muš- advice to a large number of individuals uzorku povreda ili ugrožavanje prava karcima u 42% slučajeva. are the main activities of YUCOM ‘s free legal aid program. Conducting strategic GENDER cases resulted in changes in regulations with the aim to achieve effective protecti- on of citizens before the state authorities. A new, improved legal aid applica- tion form in 2013 significantly simpli- fied the process of addressing YUCOM 58% for the parties, especially regarding the Women description of their legal problems, and 42% directing them to the facts legally rele- Men vant to the solution of the problem. At the top of the application form there is a space for their personal information, then a concise description of the case which includes the type of violated right, actions taken before the autho-
YUCOM 2013 / Annual Report / No 1- 7 BPP 2 Besplatna pravna pomoć / neprocenjena vrednost ljudskih prava
In 58% of the quarterly sample of cases, violation of or threat to certain rights has been done to women, to men in 42% of cases. In most cases, the rights of individuals or natural persons are compromised, who in 55% of cases are from Belgrade. According to the age of the victims (or potential victims) of violation of the rights the most common age group is 45 -65 years (38%), followed by26- 45 years (35%).
The most commonly affected group Statistical overview of age groups of applicants to which citizens belong are seekers of Age Number of Percentage welfare in 39 or 11% of cases1, people applicants with disabilities in 14 (4%) and mi- grants / refugees / asylum seekers in 11 unknown 39 11.47 % cases (3.5%), Roma and foreigners in up to 15 2 0.59 % 7, or 2% of the cases. 16-25 14 4.12 % The most commonly reported com- promised human rights are the right 26-45 119 35.00 % to a fair trial - in 53 cases, the right 46-65 130 38.24 % to work - 39 cases (9.3%), children’s rights - 36 cases (8.5%) and the right over 65 36 10.59 % to peaceful enjoyment of property 35 (8.3% ). These are followed by the right to trial within a reasonable time, the ri- ght to a fair trial (27), the right to social Statistical overview of the social background security (26) and the right to privacy Social group Number Percentage and family life. Migrants/refugees/asylum seekers 12 3.41 % IDPs and returnees 4 1.14 % Roma 7 1.99 % People with disabilities 14 3.98 % Welfare seekers 39 11.08 % War veterans 4 1.14% LGBT 3 0.85 % Persons deprived of their liberty 5 1.42 % Foreign nationals 7 1.99 % Human rights defenders 3 0.85 % Children 6 1.70 % National/Religious/Ethnic Minority 2 0.57 % 1 General public is the group to belong the vast majority of people that applied for free legal aid Other 246 69.9 % (69%)
8 - YUCOM 2013 / izveštaj o radu / Broj 1 BPP 2 Besplatna pravna pomoć / neprocenjena vrednost ljudskih prava
Statistical overview of human rights being violated Threatened human right Number Percentage Threatened human right 9 2.14 % The right to life 14 3.33 % The prohibition of torture and ill-treatment 6 1.43 % The right to liberty and security of person 2 0.48 % Prohibition of slavery and forced labour 53 12.62 % The right to a fair trial 27 6.43 % The right to trial within a reasonable time 5 1.19 % The right to an effective remedy 7 1.67 % The right to marriage and starting a family 22 5.24 % Right to privacy and family life 5 1.19 % Right to free access to information 1 0.24 % Freedom of association 6 1.43 % Prohibition of discrimination 35 8.33 % The right to peaceful enjoyment of possessions 1 0.24 % The right to education 39 9.29 % The right to work 26 6.19 % The right to social security 6 1.43 % The right to health care 19 4.52 % The right to housing 36 8.57 % Rights of the Child 2 0.48 % Minority rights 17 4.05 % The right to good governance 82 19.52 % Other rights
YUCOM 2013 / izveštaj o radu / Broj 1- 9 FLA 2 Free Legal Aid: / unassessable value of human rights
Legal aid is usually granted in ca- ses related to family law - 92 cases. It is followed by labour law (62), criminal law (44), property law (37) and admi- nistrative law (34).
BRANCHES OF LAW
62 Labour Law 92 Family Law 100 11 Inheritance Law 37 Property Law 14 80 Constitutional Law 34 Administrative Law 6 Financial Law 60 44 Criminal Law 3 Public International Law 40 2 Private International Law
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The procedures in which legal aid was granted are in majority civil cases (146), followed by administrative (54) and criminal (51).
TYPE OF PROCEDURE
51 Criminal 146 Civil 150 14 Noncontentious 54 Administrative 4 Administrative dispute 120 6 Executive 1 Delictual 8 90 Before The Constitutional Court 20 Before ECHR 41 Other 60
30
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10 - YUCOM 2013 / Annual Report / No 1 BPP 2 Besplatna pravna pomoć / neprocenjena vrednost ljudskih prava
Specific cases were a total of 86, mostly domestic violence and cases of not giving alimony (26 and 19).
Statistical overview of specific cases Specific case Number Percentage Hate crime 6 6.98 % Hate speech 1 1.16 % Mobbing 11 12.79 % Domestic violence 26 30.23 % Not giving alimony 19 22.09 % Custody 8 9.30 % Capacity to practice 6 6.98 % Corruption 9 10.47 % Total 86
Out of twenty - 6 applications on affiliation, genetic characteristics and discrimination were related to ethnici- marital status. ty, 3 on sexual orientation and ethnic origin, and2 each regarding political
Statistical overview of the grounds of discrimination Ground of discrimination Number Percentage Ancestors 1 5.00 % Nationality 6 30.00 % Ethnic background 3 15.00 % Political affiliation 2 10.00 % Sexual orientation 3 15.00 % Genetic characteristics 2 10.00 % Disability 1 5.00 % Marital and family status 2 10.00 %
YUCOM 2013 / izveštaj o radu / Broj 1- 11 Y1 Broj 1, Decembar 2013. YUCOM 2013 izveštaj o radu
3 S Selected cases of advocacy: socially vulnera- ble and human rights defenders in the pitfalls of inef- ficient judicial system
12 - YUCOM 2013 / Annual Report / No 1 S 3 Selected cases of advocacy: socially vulnerable and human rights defenders in the pitfalls of inefficient judicial system RIGHT TO A FAIR TRIAL WITHIN A REASONA- BLE TIME
Violations of the ri- time (in addition to the fact that typi- not specify the amount of loss to be re- cally it takes two years for the determi- covered until late 2011. The amount is ghts confirmed by the nation of a violation of the right) is the dependent on the agreement achieved decisions of the Con- satisfaction in the form of compensati- between the applicant of the constitu- on that the parties are seeking in these tional appeal and the Commission for stitutional Court and proceedings. The question is whether and compensation, which was abolished the compensation in which cases compensation for pecuniary by the amendments to the Law on the The right to a fair trial within a rea- and non-pecuniary damage for the vio- Constitutional Court. Thus, the exerci- sonable time is one of the most frequent lation of human rights can be requested, se of the right to compensation had to rights that Serbian citizens claim was having in mind that the Constitutional be exercised in civil proceedings. Since denied them, whether during the pro- Court is, by rule, establishing a right to the entry into force of the new Code of ceedings before Serbian courts or du- compensation for non-pecuniary dama- Civil Procedure in 2012, it was nece- ring the proceedings before administra- ges (which can afterwards be achieved ssary to address the Public Prosecutor’s tive bodies. According to some views, in civil proceedings), although provisions Department for damages claimed by the right to redress for the violation of of the Law on the Constitutional Court the state, in order to agree on the amo- this right should be exercised before the authorize it to determine the obligation of unt. Commonly, this mechanism does Constitutional Court of Serbia. There compensation and order its execution. It is not work, because there is a two month are cases where this protection, along evident that the parties, in seeking com- dead-line for all bodies (courts and the with compensation for violated rights, pensation, claim that they have suffered Ministry of Justice) to give their sugge- was demanded before the ordinary co- significant damage due to remuneration stions on the amount. Therefore, the urts. However, the judges of the Su- paid to their agents, and representatives parties are, commonly, just waiting for preme Court judged this practice to be of the opposing party (when being a losing the expiration of two months from the improper, because it led to awarding di- party in the dispute) for hearings that were submission of the proposal to the Public fferent amounts on different grounds. A not held. Prosecutor’s Department, to be eligible particular problem with the protection In its decisions on constitutional to file a lawsuit. of the right to a trial within a reasonable appeals the Constitutional Court did
In the case of V.P. vs. the Republic of of the dispute for compensation to the the hearing. As YUCOM’s party sought Serbia, the Lawyers’ Committee for Public Prosecutor’s Department (PPD). compensation of both non-pecuniary Human Rights - YUCOM represented As the PPD had not decided on the pro- and pecuniary damage, the Court or- the damaged party before the Consti- posal since the lawsuit was filed on No- dered the claimant to specify the claim, tutional Court. This case was litigated vember 22nd 2012, a complaint for da- by specifying costs that the court caused for 9 years before the courts in Belgrade. mages for violation of the right to trial to the plaintiff. The amended complaint After the Constitutional Court found within a reasonable time determined by clarified all court actions that have con- that the right to a trial within a reaso- the Constitutional Court was filed. A tributed to unjustified costs which the nable time was violated and established preliminary hearing was scheduled for plaintiff was exposed due to the ineffi- a right to compensation for moral da- March 14th 2013. YUCOM’s attorney ciency of the court. The next and final mage on January 22nd 2011 in the case suggested that the process should be hearing was held on May 22nd 2013 no. UZ - 550/2009, the attorney of the completed in a maximum of two sessi- when the verdict was issued. Lawyers’ Committee for Human Rights ons. The PPD had submitted a respon- Deciding on the part of the claim rela- sent a proposal for a peaceful settlement se to the lawsuit, but did not appear at ted to the non-pecuniary damage, the
YUCOM 2013 / Annual Report / No 1- 13 S 3 Selected cases of advocacy: socially vulnerable and human rights defenders in the pitfalls of inefficient judicial system
Court considered that it was partia- of the individual right, particularly the plaintiff as a party had the opportunity lly founded, for the following reasons: right to a trial within a reasonable time, to claim that the costs that the oppo- “The basis for the claim for non-pecu- which is of special importance, since it sing party made, should be covered by niary damages is a violation of the ri- is guaranteed by the Constitution of the the opposing party, as well as the cost ght to a trial within a reasonable time Republic of Serbia. The Court also took of delays that occurred and were caused guaranteed by the Constitution of the into account the importance of injured by the defendant. The plaintiff in this Republic of Serbia. A violation of the good for the plaintiff and the purpose of proceeding did not file such a claim, or rights of plaintiff was indisputably esta- compensation it awarded but also that it did not use the procedural rights set by blished by the Constitutional Court, does not favor the aspirations incompa- the law. Bearing that in mind, the Court which is the sole authority to determi- tible with its nature and social purpose. cannot be held responsible for the plain- ne the existence of this injury. Likewise, Pursuant to the above, the court finds tiff not using legally recognized rights, the Constitutional Court in its decision that the amount of RSD 100,000.00 and the described situation does not established the right of plaintiff to com- represents fair compensation for blame the court for costs covered by the pensation for non-pecuniary damage non-pecuniary damage suffered by the plaintiff. Thus there is no fault of the da- as a result of violation of the right to a plaintiff. Deciding on the part of the mage that occurred, but the same shall trial within a reasonable time. As descri- statement of claim related to pecuniary be borne by the plaintiff precisely be- bed above, legal basis for the claim for damage, the Court considers that it is cause of the passive behavior. The costs non-pecuniary damage is indisputably unfounded as a whole, for the following were awarded to the defendant only in established by the Constitutional Co- reasons: “According to the claimant, the seven hearings that were not held, while urt. Neither the defendant in the res- amount claimed in respect of pecuniary there were nine of them. Three hearings ponse to the complaint did not dispute damage is the amount of litigation costs were postponed due to the illness of the the existence of decision of the Consti- in case no. P 3355/ 00 before Third judge, one because the litigants did not tutional Court, nor did he challenge the Municipal Court in Belgrade, which is appear, two because the witness did not basis of the plaintiff’s claims in reque- not the fault of the plaintiff, but still is appear. Hearings that were held were sting compensation for non-pecunia- obliged to pay. For all sessions specifica- also ended by disposal of evidence, in ry damages, other than arbitrarily. In lly listed in the complaint that were not order to obtain records for the associa- accordance with the above mentioned, held because of the court or the defen- tion and submit documentation on the the basis was established, since the civil dant, the court adjudged legal costs to proposal of litigants.” court is not authorized to appreciate the the plaintiff, although the plaintiff duly After the verdict, the plaintiff did not existence of such a violation, or in any approached each hearing and was repre- appeal (especially since she was ex- way question the earlier decision of the sented by a lawyer. Therefore the plain- hausted by the long struggle for her Constitutional Court, which determi- tiff claimed that the court is responsible rights). Although the judgment was ned the injury. Deciding on the amo- for compensation of any damage in the made on May 22nd 2013, the stamp unt of statement of the claim relating to form of unjustified costs incurred and of validity was not received before the non-pecuniary damage, the Court related to the lawyer’s presence at the August. As the Republic of Serbia in considers that the fair amount of com- hearing listed in the complaint. the period of 15 days did not fulfill its pensation which belongs to the plaintiff According to the court, the plaintiff is obligation, the attorney of YUCOM is RSD 100,000.00 (less than 1000 eu- in this case not entitled to such com- launched an enforcement procedure. ros). In deciding on the amount of da- pensation. Within the civil proceedings The enforcement order was issued on mage suffered by the plaintiff , the court in the case no. P 3355/ 00 before the October 7th 2013, and payment is took into account that it is a violation Third Municipal Court in Belgrade, the expected by the end of 2013.
In the case E.N. vs. Serbia, the ted by the Constitutional Court or may Human Rights. The Lawyers’ Commi- Constitutional Court began defining grant amounts that are greater than ttee for Human Rights – YUCOM ca- the amounts in euros in its decisions the value prescribed. In cases E.N. and lled upon this case in the constitutional by the end of 2011. These decisions, G.N. vs. Republic of Serbia, the Con- complaint, so the Constitutional Court although enforceable according to the stitutional Court established compen- found identical violation as the Europe- Constitution, in the part of the reali- sations of 1,500 euros and 800 euros an Court of Human Rights did in the zation of compensation cannot be ac- to the applicants of the constitutional case of J, using the same reasoning for hieved without launching a new civil complaints. It is interesting to compare its decision. The only difference in tho- procedure. The question is whether the this case with nearly identical case of J. se cases is the amount of compensati- court is obliged by the amounts alloca- vs. Serbia before the European Court of ons for damages. The European Court
14 - YUCOM 2013 / Annual Report / No 1 S 3 Selected cases of advocacy: socially vulnerable and human rights defenders in the pitfalls of inefficient judicial system of Human Rights has awarded to the the violation of this right within the juri- time limit for completion of the procedu- first applicant (the daughter) the amo- sdiction of the Constitutional Court. The re. It also introduced a two-instance pro- unt of 5,000.00 euros for non-pecu- latest amendments to the Law on Courts cess, so that the decision on the violation niary damage, and 1,000 euros to the (which is made according to the Croatian and the amount of compensation may second applicant (the mother). There is model) will be applied starting from Ja- be appealed to the Supreme Court. For an obvious discrepancy in these amo- nuary 1st 2014 and should contribute to proceeding on the appeal there is also no unts, although the case of determina- faster resolution of violation of the right time limit set. Also, there is the question tion of paternity of E.N. took longer to a trial within a reasonable time and of whether the party must be represented than paternity determination cases of damages caused by the violation of this ri- by a lawyer before the Supreme Court. underage I.J. The Lawyers’ Committee ght. According to the latest amendments, Although it is a positive step in the relief for Human Rights addressed the Pu- the higher cour , in relation to those before of the Constitutional Court, it seems that blic Prosecutor’s Department (PPD) which a violation occurs, is directly res- there is the possibility of transferring the for the enforcement of the decision of ponsible for the protection of the right to load from the Constitutional Court to the the Constitutional Court. Since the a trial within a reasonable time and the Supreme Court. The Law on Courts is not PPD did not react, in December 2013 decision of non-pecuniary damage (accor- entirely clear, and the practice will show YUCOM filed a lawsuit. Although the ding to the definition in Art. 8b Law on whether the remarks of the Lawyers’ Com- Constitutional Court, due to the nature Courts, which speaks of “exemplary com- mittee for Human Rights were justified. of the case, reacted immediately, which pensation” there is no place for pecuniary In the end, the legislature should declare resulted in the judgment becoming fi- damages before the ordinary courts for vi- about achieving compensation for the vio- nal in the process of determination of olation of Art. § 32 . 1 of Constitution of lation of other human rights, which are to paternity, the procedure of compensati- the Republic of Serbia). It is precisely pro- be determined within the jurisdiction of on took a very long time. vided that the party files a claim based on the Constitutional Court. If it means that The Lawyers’ Committee for Human Ri- which the payment is made within three the civil proceedings and enforcement pro- ghts, shortly after the introduction of a months from the date of application, from ceedings should be led after the proceedin- constitutional appeal for violation of the the budgetary funds allocated for the work gs before the Constitutional Court, it is an right to a trial within a reasonable time, of the court. We assume that this request inefficient solution and creates additional drew attention to the fact that it would be is submitted to the court that committed costs in terms of engagement of the courts more appropriate if Croatian model was the violation. and attorneys, as well as interest accruing introduced, which directly authorizes hig- However, although it is certain that the to the detriment of the citizens of Serbia. her courts for the protection of the right. next higher court shall in short noti- In this regard, we advocated for the need ce decide on the violation of rights in a to amend the Constitution, which places non-contentious procedure, there is no
V.Ž. vs Serbia: exhausting path to which made it impossible for him to these actions denied the possibility to the status of disabled veteran exercise the right to social security. Sin- exercise rights to disability benefits and V. Ž. is a war veteran and refugee from ce submission of the “request for a re- other guaranteed rights to social prote- the Republic of Croatia. He lives in trial” in September 2006 until the day ction, that were already determined in Serbia since the war in former Yugo- of the submission of the constitutional his case, due to his disabled veteran sta- slavia. A request to be recognized as a complaint in December 2013, the first tus that was not yet confirmed, which is disabled veteran (RVI) he filed in Fe- instance authority issued three decisi- the basis for the exercise of these rights. bruary 1999, when his battle against ons and the appellate body six, one of The first request that V. Ž. submitted the system began, in order to exercise which is procedural decision. Three se- in 1999. was rejected by a ruling of the social protection rights, which are gua- parate administrative proceedings took Belgrade municipality of Zemun, on ranteed by the state to the persons who place in which five judgments were the grounds that the established disea- participated in the war. delivered. Currently the fourth admini- se can not be associated with being on Ineffective actions of the authorities strative proceeding is being carried out. the battlefield, and that V. Ž. does not of Belgrade and the city municipali- The procedure based on the request for posess any medical document from that ty Zemun, as well as the courts of the a retrial is lasting seven years now, while period. Administration for veteran and Republic of Serbia in administrative the struggle to establish the status and disabled protection of Belgrade, as an proceedings, have led to the fact that exercise of the rights, fourteen years. appellate body which acted upon V. Ž’s the right to a trial within a reasonable V. Ž , to whom decisions in these pro- appeal on the above mentioned ruling, time was violeted in the case of V. Ž. cedures are of existential importance, sent him to the clinic of Military Me-
YUCOM 2013 / Annual Report / No 1- 15 S 3 Selected cases of advocacy: socially vulnerable and human rights defenders in the pitfalls of inefficient judicial system dical Academy for civilians, so it could, ary 2013. On to this lawsuit has not gth of the challenged procedure. This is on the basis of clinical examination or yet been decided. In this period V. Ž. confirmed by the fact that, in this case, medical records that V. Ž. owns, give initiated several proceedings before the Court of Administrative Disputes an expert opinion. In findings of a spe- various authorities. He initiated two (District Court in Belgrade and the cialist a suggestion was emphasized, in inspection processes, in Februar 2009 Administrative Court of Serbia) three addition to the established disease, to and in April 2010, in order to influence times overturned the decision of the se- have expertise conducted before the co- faster acting of administrative bodies of cond instance authority. urt, based on which the City Admini- local self-government. Inspections then According to the view expressed by the stration issued a decision rejecting the found a violation of the Law on Admi- European Court of Human Rights, complaint and determine the existence nistrative Disputes. V. Ž. filed a civil the fact that many times repetition of of a military disability below 20 % due complaint to counsel of Belgrade in consideration of one case before lower to the lack of medical records from the November 2009, and to Ombudsman instance is required, can reveal serious period of the war, and without condu- of Republic of Serbia in September deficiencies in the legal system of the cting a medical expertise. 2009, April 2010. and August 2011. state. Responsibility for the long durati- In following years V. Ž. managed to V. Ž. addressed Lawyers’ Committee on of the proceedings shall be borne by obtain documents dating from the pe- for Human Rights in November 2013. the competent court, since the the Su- riod of the war, mainly finding, evalua- YUCOM’s attorney established a clear preme Court of Cassation took a year tion and review of medical institutions elements of violation of the right to a and three months for the decision on in Knin (Croatia), under which he was trial within a reasonable time by the the appeal against the judgment of the found unfit for military service. In Sep- Republic of Serbia, and filed a constitu- Administrative Court. The constitutio- tember 2006 he applied for the retrial tional appeal in early December 2013. nal complaint pointed out that the fact decision on his status, which was reje- A constitutional appeal requires finding that the process has been going on for cted as unfounded by the municipal au- of a violation of the right to a trial wi- seven years and two months, indicates thorities. V. Ž. timely responded to the thin a reasonable time, guaranteed by that the process is not completed wit- appeal. Secretariat for Social Welfare Article 32 Paragraph 1of Constitution hin a reasonable time, and no complex and Children Protection - Department of the Republic of Serbia, the determi- factual and legal issues were not pre- for Veterans of the City Administrati- nation of rights to compensation for sent, since the authorities were required on, issued a decision which annulled non-pecuniary damage and warrant to to determine whether the request for conclusion of first instance authority, the Administrative Court of Serbia to retrial was submitted in timely manner, and returned to retrial in March 2007. take all necessary measures in order to and whether the circumstances under- V. Ž. filed his first claim for an admini- complete administrative proceedings lying the proposal was probable. Also, strative proceeding to the District Co- on lawsuit and administrative procee- administrative authorities were required urt in Belgrade in January 2008. ding on the request for retrial from to examine whether the circumstances In March same year, the District Co- September 21st 2006, in the shortest and the evidences were such that they urt in Belgrade delivered judgment possible time. The constitutional com- can lead to different solutions. Procee- which upheld the claim and annulled plaint emphasized that during the pro- ding before the Constitutional Court is the decision of the city authority of se- ceeding on the application for retrial, in progress. cond instance. Proceedings continued. wrong and ineffective treatment of se- The fourth complaint he filed before cond-instance administrative body led the Administrative Court in Febru- to the unjustified and unreasonable len-
Case E.N: a long way to achieving and the right to a fair trial within a rea- of Braljina near Jagodina is biological rights of a child sonable time. The first applicant of the father of underaged E.N., born extra- Constitutional Court, on the occasion constitutional complaint is the extra- marital on December 10th 1997 in of the constitutional appeal filed by marital child born in 1997. She and her Belgrade and registered in the register underaged E.N. and G.N., who were mother as the second applicant of the of births of municipality Novi Beograd represented by the Lawyers’ Committee complaint, filed lawsuit on April 8th under current number XXXX for 1998, for Human Rights, has within 3 mon- 2002 to the Second Municipal Court with G.N. from Belgrade being her ths, in April 2013, made the decision in Belgrade in matter of determining mother. The procedure for establishing which established that in determining paternity, which have sought to establi- paternity lasted almost 11 years, main- paternity the rights of the child were sh that the M.S. from Belgrade, born ly because the father avoided receiving violated: the right to know the origins, on October 05th 1954 in the village summons and all other correspondence
16 - YUCOM 2013 / Annual Report / No 1 S 3 Selected cases of advocacy: socially vulnerable and human rights defenders in the pitfalls of inefficient judicial system from the court, and his family refused postponing the hearings, violating the tutional appeal. Therefore, a violation of to testify. Although the court ordered constitutional right to a fair trial within Article 8 of the European Convention on the expert DNA analysis of blood twi- reasonable time. Also, the fact that the Human Rights was identified. This is just ce, the father of the child did not show process of determining paternity, which one of the cases which shows that the legal up in an institution for this particular by its nature should be priority, lasts for system in Serbia has no means to compel expertise.The length of the proceedings 10 year, is a violation of the right to a the alleged father to comply with a order has affected the child so it was in the fair trial within a reasonable time. of the court to conduct DNA analysis. Ac- state of prolonged uncertainty with Since a civil litigation is the only way cording to the Constitutional Court, it is regard to the personal identity, as well the applicants of the constitutional guaranteed to everyone not to be subjected as deprived from any support from the appeal could determine whether the to the medical research of any kind witho- biological father. Second Municipal defendant was the child’s biological ut the consent. In the situation described, Court in Belgrade, and after the reform father, according to the provisions of as estimated by the court, it is necessary of the judiciary Higher Court in Bel- domestic law, there were no measures to have or to provide other mechanisms grade, by such conduct of the procee- to bind the defendant to comply with that can ensure the interests and rights dings since 2002, has enabled the abu- the decision of the Municipal/Superior of the person seeking paternity. With this se of process of law by the defendant, Court to conduct DNA analysis, nor decision, the Constitutional Court upheld through the avoidance of receipt of the there is a direct provision regulating the the decision of the European Court of Hu- complaint, failure to appear at the hea- same contempt. The judicial authorities man Rights that the rights of children in ring, and despite the regular summons, in Serbia, however, after the assessment a number of cases have been violated be- it tolerated it, and did not use the le- of the submitted evidence, could have cause process solutions are lacking or even gal possibility of sanctioning the abuse. decided at their discretion and take into not being enforced in the paternity pro- Since the defendant was a judge of the account the fact that a party in the pro- ceedings. Lawyers’ Committee for Human Municipal Court in Belgrade and then ceedings obstructed determination of Rights urged that these opinions should be the Supreme Court of Serbia during the the relevant facts. Moreover, in ruling taken into account in the adoption and trial, and that this fact was well known, on the motion to determine paternity, application of laws in Serbia, because the court ordered the appointment of a the courts are asked to pay particular they will thus avoid the violation of the temporary representative for represen- attention to the best interests of the rights of the child to know its origin, but tation only after a year and three mont- child to which the request relates. also the payment of compensation that hs from the filing of the complaint. The The authorities failed to provide the “res- goes at the expense of citizens in determi- court influenced on the postponement pect” of her private life to which she is ning these injuries. of the proceedings by rescheduling and entitled to the first applicant of the consti-
PROHIBITION OF DISCRIMINATION
AP vs Jat Airways is the first pro- sferred to the jurisdiction of the Higher first-instance judgment was not reac- ceeding in protection against discrimi- Court in Belgrade. Although all impera- hed until the fourth calendar year, after nation initiated after the entry into force tive regulations provide urgency for this a large number of embedded urgencies, of the Law Against Discrimination. AP, type of procedure and the anti-discrimi- complaints to the courts, the reporting employed as a pilot in the Jat Airways nation lawsuits have to be validly com- by the media, and two recommendati- (today AirSerbia), represented by a legal pleted within 6 months from the date ons issued by the Commissioner for pro- team including the attorney from YU- of filing of the claim as the initial act, tection of Equality. COM, submitted the claim for protecti- the trial proceedings before the Higher The first instance judgment of the Hig- on from discrimination and harassment Court in Belgrade lasted for almost 4 ye- her Court in Belgrade reached on Janu- at work on June 29th 2009, before the ars. Contrary to imperative provisions of ary 5th 2012 determined that the defen- Fourth Municipal Court in Belgrade, the Labour Law, the Law on Prohibition dant Jat Airways discriminatory treated which then had jurisdiction. After the of Discrimination and the Law on the AP in the longer peroid of time, and judicial reform, this process was tran- Prevention of Workplace Harassment, that he had committed serious form of
YUCOM 2013 / Annual Report / No 1- 17 S 3 Selected cases of advocacy: socially vulnerable and human rights defenders in the pitfalls of inefficient judicial system discrimination - extended discriminati- an integral part of national legislation practice and the use of legal mechani- on under Article 13, paragraph 1, item and are mandatory. sms by judges to punish non-complian- 6 of the Law on Prohibition of Discri- After the appeals, the case was twice be- ce with the court’s decision. Thus, at a mination, as well as harassment at work, fore the Court of Appeal in Belgrade, for hearing in December 2013, the attorney stating, among other things, humiliating the full 9 months during 2012, so that of AirSerbia was fined with 10,000.00 and demeaning treatment of the pla- the Court of Appeal finaly remanded the RSD, while AirSerbia was fined with intiff, unequal work conditions, illegal case to the first instance court but only 100,000.00 RSD. A particular problem treatment and elements of harassment to correct formal defects eg . “obvious is the burden of proof on the defendant, at work due to the fact that the plain- typos” and second time for almost six in terms of the provisions of the Law on tiff sought protection from discrimina- months, after which the Court of Appe- Prohibition of Discrimination, and the tion in court, the plaintiff was put in a al overturned the first instance decision Law on the Prevention of Workplace disadvantage position in relation to ot- and returned the case to the Higher Harassment, and in this case, the pas- her employees pilots, with simultaneous Court for retrial on March 14th 2013. sive behavior of the defendant actually violation of the plaintiff’s right to work. Upon receipt of the judgment of the Co- prevents the plaintiff A.P. to exercise the Also, the Higher Court dismissed one urt of Appeal, the Higher Court in Bel- right of access to a court, and thus the part of the claim by the same judgment, grade has scheduled the first hearing for access to the justice. for the period between 2000 and 2005, the trial by the repeated procedure after The opinion of the European Court of because, according to the opinion of six months, contrary to the provisions Human Rights is clear: chronic overcrow- the Higher Court, the matter of discri- of the Code of Civil Procedure, which ding and delays in the cases are not a valid mination was for the first time regula- imposes an obligation of first instance explanations for the excessive delays, and ted by the Constitution of the Republic court that, after receiving the decision of repeated examination of one case after re- of Serbia adopted in 2006, which, like the appellate court, the first hearing shall mittal, may itself prove a serious flaw in the Law on Prohibition of Discrimina- be scheduled and held within 30 days. the judicial system of a country. This case tion and the Law on the Prevention of The case is still in process before the is an indication of the obvious flaws in the Workplace Harassment, came after the Higher Court in Belgrade. There were judicial system of the Republic of Serbia, event that the prosecutor stated in the two of the main hearings, and the court, as well as the inability of the courts to pro- lawsuit. In the explanation of this part pursuant to the provisions of the Code vide adequate protection to victims of dis- of the judgment, the court stated that of Civil Procedure, determined a time crimination and harassment at work, but in the Republic of Serbia before 2006 frame of six months for the completi- also an indication of a state of conscio- there was no legal provision that could on of the trial in this matter. Therefore usness – meaning the wrong approach to sanction any type of distinction among this case entered the fifth calendar year, the concepts of discrimination, protection the citizens of the Republic of Serbia, by and by illegal and untimely work of the mechanisms, and consequences of failure which the Court sends a clear message to courts of Republic of Serbia, protection to provide adequate and timely legal pro- the public that anyone who has been dis- from discrimination and harassment at tection to discriminated and abused per- criminated in Serbia prior to 2006 was work become meaningless. sons. Bearing in mind that only the first not entitled to judicial protection. This This case has attracted media attention. instance proceedings lasted nearly four ye- opinion of the Higher Court in Belgra- Lawyers’ Committee for Human Rights ars, the total duration of the proceedings de shows that the court does not know in its statements pointed out unprofessi- in the anti-discriminatory lawsuit present to implement regulations related to onal and inappropriate behavior of the an obvious violation of the right to a fair discrimination, by forgetting a number attorneys representing national airline trial as guaranteed by the Constitution of of international documents such as the AirSerbia, which is to prolong duration the Republic of Serbia and the European UN Charter, the Universal Declaration of the procedure, as well as tolerance and Convention for the Protection of Human of Human Rights, and the conventions nonsanctioning such behavior by the co- Rights and Fundamental Freedoms. that Republic of Serbia has signed and urt. Media reports from the courtroom ratified a long time ago and that present certainly contributed to the change in
The case of NM : Representation of she approached YUCOM ‘s legal team have been done may actually represent human rights defender seeking expert care and advocacy in this only the elements of harassment at work, Against N.M the civil procedure, for the process. After reviewing the lawsuit, but not discrimination. YUCOM’s legal protection against discrimination ba- attorneys of YUCOM have observed team, seeing the lack of elements of dis- sed on political affiliation, was initiated that the actions listed in the lawsuit as crimination and with the belief in a pro- in May 2011. Upon receipt of lawsuit, those through which discrimination fessional and moral integrity of N.M.
18 - YUCOM 2013 / Annual Report / No 1 S 3 Selected cases of advocacy: socially vulnerable and human rights defenders in the pitfalls of inefficient judicial system as a longtime human rights defender, discriminatory towards the plaintiff, we of the case was determined. The process accepted the case. have requested the court to dismiss the is ongoing. Also, in this case indicative was the fact action as improper. The Judge has, after It can be concluded that the protection aga- that the lawsuit alleged that the plaintiff the preliminary hearing, rejected the cla- inst discrimination, even four years after the suffered health problems due to the con- im. However, the reasons for the decisi- adoption of the Law on Prohibition of Dis- tinuing discriminatory treatment by the on are not clearly explained. Specifically, crimination, is still not sufficiently under- defendant, and that she repeatedly sought the court stated that the discriminatory standable, not only for the citizens as poten- immediate medical care. However, con- treatment was not sufficiently defined, tial victims, but also for the attorneys and for trary to the Law on Prohibition of Dis- and the court can not perform eviden- the court. Specific procedural rules in these crimination, statement of claim did not ces to determine the facts that are not cases are incorrectly interpreted by all acters require that the court order prevention clearly set in the lawsuit. In response to in the process, a number of mechanisms en- of any further discrimination against her, the plaintiff’s appeal against this decisi- visaged in the law are not used in practice, nor prevention of the recurrence of acts on, YUCOM’s attorneys referred to the and the procedures are not being conducted by which discrimination was made. The reasons in accordance with the Law on in timely manner, although it is provided by court was asked to determine the discri- Prohibition of Discrimination, which law for both actions and decisions, in cases minatory treatment against her, as well as would substantiate such court decision. involving the violation of fundamental hu- compensation for damages, that were su- Again, it was emphasized that, although man rights. As always when it comes to the ggested in an unreasonably high amount. a formal claim on discrimination, acts new institution in the legal system, it takes At the preliminary hearing, which was of discrimination were not well defined, some time to come into force and to develop held in September same year, the court meaning the behavior of the defendant in order to achieve its purpose. Continuing ordered plaintiff’s attorney to rearrange may still be interpreted as behavior san- education, of both judges and attorneys, gra- the claim, by separating acts of discrimi- ctioned by the Law on Prevention of dually contributed to a better understanding nation from acts sanctioned by the Law Harassment at work instead of the Law of the phenomenon of discrimination and on the Prevention of Workplace Hara- on Prohibition of Discrimination. develop clear standards for determining the ssment. Acting under this order, plaintiff Decision of the Court of Appeal from existence or non-existence of discriminatory ‘s counsel made claim clearer, however, March 2013, vacated the above menti- treatment. Finally, for effective implementa- these actions were still not separated. oned decision and the case was returned tion of anti-discrimination legislation and Based on the fact that the claim lacked to the first instance court for a retrial. Af- measures necessary to identify cases of abuse legal sufficiency, and that it has not been ter that, there were two hearings and the of rights, was one of the reasons why YU- made probable that the defendant acted time limit of two years for completion COM took over this case.
OTHER SELECTED CASES
Violence motivated by homophobia : trial was completed on November 12th the requirements of the Higher Public adequate protection of the inviolabi- 2013 with interrogation of the defen- Prosecutor’s Office and the defendant lity of physical and mental integrity dant, one of the victims and three wit- was sentenced to imprisonment of se- In the proceedings before the Hig- nesses as well as examining the expert ven years - six years for attempted mur- her Court in Novi Sad against S.S, on of medical profession on circumstan- der and one for bullying. suspicion that he had committed the ces regarding severity of body injuries The attack was carried out in June crime of violent conduct and attempted and mental capacity of the defendant. 2012 in the city bus in Novi Sad, when murder, the Lawyers’ Committee for On the next day, on November 13th, the defendant attacked the victims, first Human Rights - YUCOM represented a judgement regarding S.S. was issued, with fists and then with a knife, thin- the injured, two brothers, victims of and he was found guilty of committing king that one of them ’was making a physical assault, while one of them re- criminal acts of bullying and attempted move towards him’. The injured young ceived serious injuries. In this case, the murder. The first instance court upheld people who were in good spirits retur-
YUCOM 2013 / Annual Report / No 1- 19 S 3 Selected cases of advocacy: socially vulnerable and human rights defenders in the pitfalls of inefficient judicial system ning from the night out, were victims carried out in the full city bus tran- the Criminal Code, introduced to the of hate - motivated attack that carries sport, as well as that victims did not system of legal protection in Serbia as a great social danger. On this occasion, trigger the execution of these attacks special aggravating circumstance that one of the victims sustained serious with their actions. Also, the court reje- judges must apply at sentencing, if proven injuries. The motive of this attack was cted the allegations of the defense that discriminatory motive. certainly discriminatory. In the state- the defendant was in a state of mental This case has been admitted in court ment given to the police, the attacker incompetence due to abuse of alcohol on January 15th 2013. Lawyers’ Com- himself pointed motive for the attack, and psychoactive substances, due to mittee for Human Rights - YUCOM which is based on homophobia. He re- the fact that he fully reconstructed the said, in a press release, that the reaction signed from this statement during his event. The fact that the defendant com- of the competent authority was in timely defense before the court, when he po- mitted the offense because of the perce- manner, as well as that the punishment inted out that at the time of the attack ived sexual orientation of the victims, was proportionate to the offense. The he was under the influence of opiates, the court did not appreciate as a special statement noted that the effective respon- visibly changing his statements given aggravating circumstance because the se of the police and prosecution, as well as in the pre-trial proceedings. The above attack took place before the introducti- adequate response of the court, are required shows that it was a hate crime, which on of the institute of hate crimes in the in all cases of attacks on the physical inte- YUCOM’s attorney pointed out du- criminal justice system protection. grity of citizens, especially when it is moti- ring the trial. During sentencing, as Initiative of GSA (Gay Straight vated by hatred, chauvinism, homophobia an aggravating circumstance the court Alliance) and YUCOM, institute of hate and discrimination. appreciated the fact that the attack was crime was, by the latest amendments to
Hate speech in the media calling for the murder, the qualification Yugoslavia, each inciting of national and Lawyers’ Committee for Human Ri- of the criminal nature of the entire Al- religious hatred and intolerance must ghts - YUCOM has filed a lawsuit aga- banian population, and proposing “to cause a reaction of the authorities in or- inst the daily newspaper Kurir, authors introduce public execution” and so on. der to create possibilities for a peaceful and chief editor of Kurir -info digital The above mentioned text and readers’ life with the people who live in the regi- edition, for the violation of the pro- comments include the idea that the Al- on, but also with those in our country. hibition of hate speech that was made banian population itself is undesirable The text itself and the comments of rea- by publishing an article “DISCRACE: and criminogenic, so that it is justifiable ders who personified hatred towards D. Čedas director celebrated the Albanian to hate them and call for killing of those R. and towards the Albanian people and Flag Day” at the end of 2012. Throu- who express affection of this ethnic mi- all Albanian national symbols, have resul- gh unauthorized disclosure of private nority in Serbia. Those comments justi- ted in an open lynching by citizens. In a images, the author of the text presented fy existing hatred of the Albanian natio- controversial article and comments from the expression of affection of officials of nal minority, strongly condemning and readers, ideas that incite discrimination, Belgrade to Albanian national minority, calling for a lynch, murder and persecu- hatred and violence against the Albanian while condemning it as illegal behavior. tion of those who do not cultivate a fee- population only because of their ethni- The clear message from the author of ling of hatred towards the Albanian mi- city, were published. Therefore, the abo- the text is that taking a photo with the nority. The publication of this text and ve text of the defendants and published Albanian flag is an act of betrayal, and the above comments, encourage and comments, represent hate speech, and is suggests creating and fomenting hatred spread hatred against a group of people the basis on which the prosecutor seeks that is irrational and directed to the on a national basis because the alleged sanctioning by the court. entire Albanian people, those living in supporters of the Albanian people, as In response to the lawsuit, the Albania, and those living in Kosovo and well as the Albanian people, are seen as attorneys pointed out that there is no elsewhere in Serbia. evil and as a group of people who feel responsibility of Kurir or editors, for Any person could, and still can, a pathological hatred towards the inha- comments posted by readers, and that sent a comment to the specific text via bitants of Belgrade, while those who do the author of the article was reporting Internet, which so far has been made not have negative attitude towards the objectively, considering the fact that, by more than 250 people. Although, Albanians, their national symbols and by Kurir’s findings, city officials viola- the Law on Public Information and the costumes, are declared traitors. ted the obligations of the Preamble of Law on Prohibition of Discriminati- In a country like Serbia, which has the Constitution of Republic of Serbia. on, prohibit hate speech, most of the recently emerged from a bloody conflict Although, according to YUCOM’s fin- comments contain the basest insults, in Kosovo and other parts of the former dings, hate speech was directed at the
20 - YUCOM 2013 / Annual Report / No 1 S 3 Selected cases of advocacy: socially vulnerable and human rights defenders in the pitfalls of inefficient judicial system
Albanian minority and the people, mid-November 2013, before the Hig- menon. This particular case presents defendants attorneys believed that the her Court in Belgrade, 11 months after a challenge because it is a hate speech text is aimed at condemnation of D. filing of the complaint. The following under cover, which is often the chara- R., and that YUCOM represent him hearing is scheduled for March 2014. cteristic of this phenomenon, and be- and sought dismissal of the charge, Hate speech is, by findings of Ser- aring in mind that the courts in Serbia due to the absence of written consent bian courts, a common occurrence in hesitate to make a clear condemnation of the D.R., based on which YUCOM the media in Serbia. This fact requires of hate speech, mistakenly referring to was authorized to file a lawsuit. The that courts have to be more severe in freedom of opinion and expression, first ( preliminary ) hearing was held in their condemnation of this pheno- which has its limits.
SFreedom of assembly and pressure on rent non-functioning of this body to informal groups and extremist fan gro- human rights defenders which the Belgrade police also stopped ups, which would result in endangering M.U. from the organization Women referring, had not constituted an obstac- the safety and property.” To remind, in Black addressed YUCOM seeking su- le to the gathering. An additional pro- on the same day, on March 8th, many pport in November 2013. Ministry of blem is the fact that the Law on Public organizations celebrated that day at the Interior initiated the proceedings against Assembly in no way indicates the neces- Republic Square. him, before the Misdemeanor Court in sity of obtaining this decision in order to The decision to prohibit the gat- Belgrade, for the violation of the Law on organize a gathering in motion. Obstru- hering in motion to human rights Road Traffic Safety, during the gathering ction of traffic, according to the law, defenders represented an arbitrary and in motion on March 8th 2013. Women which is a lex specialis, is the basis for an politically motivated decision. Howe- in Black organization had reported the optional ban prior to the gathering, as ver, the proceding, which the Lawyers’ gathering on the International Womens’ well as the basis for an optional ban on Committee for Human Rights led to Day, on March 8th, named “Gathering further carring out the gathering. Featu- the highest instance, showed most of in motion”, in accordance with the Law red collision of Law on Public Assembly disadvantages of the regulation of free- on Public Assembly. As it had already and the Law on Road Traffic Safety, is dom of assembly, primarily the lack of organized number of similar meetings another proof that the Law on Assembly effective remedies for their protection. for years, this organization generally has has to be changed and legal certainty in “The Constitutional Court made this good cooperation with police stations achieving one of the most important hu- decision, having in mind the views of in Belgrade, to which gatherings in the man rights has to be established. the European Court of Human Rights center of Belgrade have to be reported. Namely, in March 2012 the Consti- set in the above case Baczkowski and It also respects police instructions on tutional Court of Serbia has made the others v. Poland. This court pointed obtaining additional permits from ot- decision on the constitutional appeal, out that for the effective exercise of her organs, depending on the nature of which was submitted by YUCOM on freedom of assembly it is important the meeting. When this gathering was behalf of the Women in Black. It was that the law prescribes time limits wi- reported, Ministry of Interior did not stated that numerous human rights thin which the competent authorities instruct Women in Black to obtain a of this organization have been viola- shall deliver their decision. In contrast, special permit. However, in the report of ted - the right to freedom of assembly, if there is no obligation to reach final the Ministry of Interior, Belgrade’s Poli- the right to a fair trial, the right to a decision before the scheduled date of ce Department for processing and inspe- trial within a reasonable time and the the event, one can not conclude that cting traffic violations in Belgrade, it was right to an effective remedy. These vi- the remedies that plaintiff may use - stated that M.U., along with other un- olations were identified through the with respect to their post hoc nature, known persons, occupied the driveway prohibition of the gathering ’’Hundred provide adequate protection from li- and did not allow the movement of traf- years of struggle’’ on March 8th 2008. miting freedom of assembly.” fic, despite warnings given from the traf- This gathering was prohibited without A series of decisions of the Constitu- fic police, that the organization needed an explanation, and in the procedu- tional Court regarding the violation of a decision on the use of road and divert re followed before the authorities and freedom of assembly, as well as the case of traffic from the City Administration, the courts, the Police Directorate sta- that we have presented, show that the Secretariat for Transport. ted that it was not allowed because on current Law on Public Assembly must Women in Black repeatedly applied “the relevant day in the city of Belgrade urgently be change and thereby enable to Secretariat of Transport for the issuan- a number of sports, cultural and other the realization and protection of freedom ce of the aforementioned decision, but it events of high risk were held, where co- of assembly in accordance with the de- was never received. Until this case, appa- uld reasonably be expected gathering of mocratic standards.
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The case of Borka Pavićević: freedom At the retrial, the criminal lawsuit fi- ceedings to be continued, after which of expression and protection of hu- led by “Dveri” was rejected for the lack of the pre-trial chamber of the First Basic man rights defenders evidence. The prosecutor filed an appeal Court, in December 2013, decided on Borka Pavićević, director of the against this decision too, after which the final termination of the proceedings, Centre for Cultural Decontaminati- the procedure was returned to the First as a result of absolute limitation of cri- on, has been one of the guests in the Basic Court in Belgrade for retrial. The minal prosecution. show “State of the Nation” on TV B92 same scenario occurred in the repeated Through a series of decisions, both in October 2009. On that occasion, procedure. Before a decision was made, procedural and merits, the court held she pointed out her views on the cu- according to which the claim was reje- the opinion that in this case there is rrent political situation in the country, cted, the defendant and a plaintiff coun- no place to prosecution. On the other stating that during the discussions or- sel were subjected to a hearing - first in hand, the number of complaints of the ganized at the Faculty for Mechanical the investigation process and then in the plaintiff for a period of three years, are Engineering, ideas contrary to her’s trial. YUCOM’s attorney insisted that primarily a form of pressure on human were shared, and which, according to there is no evidence that this crime was rights defenders. The pressure on the co- her opinion, are harmful for the society committed, as well as that the defendant urt itself is also significant, given that, by as a whole. Following this statement, a during the show has never mentioned insisting on further proceedings, actually lawsuit against her for the crime of “In- „Dveri“. We also insisted on the fact that indirectly an interference of public aut- sult” has been filed by the NGO “Dve- her statement was a critical part of the horities with the freedom of expression ri”. As the lawsuit did not contain any expression of her opinion, which is the of critical opinion, was sought. So, the proof of the alleged crime - not even a essence of freedom of expression. YU- freedom of expression, which is the fo- transcript or recording of the show, the COM’s attorney quoted the judgment of undation of a democratic society and an claim was returned to the private pla- the European Court of Human Rights important requirement for achieving the intiff in order to be rearranged. Since, in Dalban vs. Romania, where the Court rule of law, was denied. The right to raise clearly the plaintiff did not acted ac- held that it is unacceptable to prohibit a question of public interest, which es- cording to the orders of the court, the the expression of value judgments, unless sence represents the right to freedom of lawsuit was dismissed. After the appeal those can be proven truthful. political speech, is a prerequisite for en- submitted by the “Dveri” organization In April 2013 the Court of Appeal suring accountability of public officials against the dismissal of the lawsuit, the in Belgrade revoked the decision of the and representatives of public authorities proceedings was continued. First Basic Court and ordered the pro- of highest rank.
Social protection of refugees: twen- and 19U 30275/10 of November 17th the Law on Basic Rights of Veterans, Di- ty-year struggle of D.V.’s family 2011, stated twice the violation of law in sabled Veterans and Families of fallen so- Party to the administrative procee- this case. In making the second judgment ldiers (“Official Gazette of Federal Repu- ding D.V. from Belgrade, a refugee from in the same matter, the Administrative blic of Yugoslavia”, no. 24/98 .... 25/ 00) Croatia, has been triying since 1992 to Court stated: “In this particular case, the for the realization of the right to family qualify for family disability compensati- first instance decision of September 14th disability on the fallen fighter, so this co- on exercise the right to family disability 2010 was adopted in the execution of the urt also finds that the defendant authori- for his fallen fighter. Last claim on which second instance decision of July 22nd ty has not complied with the objections an unlawful final decision was reached 2010, which annulled the first instance in renewed proceedings and the legal by the Sector for veteran and disabled decision of October 10th 2008, acting opinion of the court in the above men- protection of the City of Belgrade, had upon the judgment of the Administrati- tioned judgment, which is the obligation been filed on November 1st 2007. ve Court 3U 14351/10 (2009) of June set forth under Art. 69 of the Law on Ad- Secretariat for Social Security - Se- 16th 2010 (which the plaintiff’s compla- ministrative Disputes (“Official Gazette ctor for veteran and disabled protection int upheld on appeal and annulled deci- of Republic of Serbia”, no. 11/ 09) and of the City of Belgrade, in the revision sion of December 2nd 2008), so that the under the provision of Article 61 of the of the first instance decision, three times challenged decision is being revised, ena- Law on Administrative Disputes ( “Offi- refused requests of a party in an admini- cted the same legal matter referred to in cial Gazette”, No. 46/ 96) , invoked by strative proceeding, twice thus opposing this judgment. In this judgment as well the Court in the mentioned judgment. the position of the Administrative Court. it was stated that the wrong conclusion Secretariat for Social Welfare of City Ad- The Administrative Court of the Repu- of the defendant, and the first instance ministration of Belgrade - Department blic of Serbia, in the opinion of the jud- authority, that the plaintiff does not meet for veteran and disabled protection did gement 3U 14351/10 of June 16th 2010 the provisions of Art. 13 Paragraph 3 of not respect repeated objections and legal
22 - YUCOM 2013 / Annual Report / No 1 S 3 Selected cases of advocacy: socially vulnerable and human rights defenders in the pitfalls of inefficient judicial system opinion of the Administrative Court on urt that is required pursuant to Art. 69 The procedure for execution of the the wrong application of the law, and it of the Law on Administrative Disputes, decision of the Administrative Court: rejected the D.V.’s request once again on it stated certain decisions of the Supre- Lawyers’ Committee for Human Rights January 10th 2012, stating that it took me Court of Cassation and the Supreme has provided support to the parties in into account the objections and legal opi- Court of Serbia, which was reportedly the implementation of the execution of nion of the Administrative Court in rea- taken legal opinion on the matter. The- this decision before the organs of local ching this decision... However, it found se decisions were not published in the self-government in Novi Beograd becau- that in this case, it had the obligation to Bulletin of the jurisprudence of the Su- se it was observed that the decision upon apply the legal position identically taken preme Court, which indicates that they which the Administrative Court of the by, both the Supreme Court of Serbia were not general legal opinions, as this Republic of Serbia gave its approval, also and the Supreme Court of Cassation. authority in its reasoning for contempt in dictum, contrary to the law, held that The proceeding before the Ombud- of court decisions of the Administrative civil wife of the fallen soldier, R.V. who sman: Ombudsman of Republic of Ser- Court stated. YUCOM called on the has also died, the right to family disabi- bia, after the procedure of controlling Ministry of Labour and Social Affairs in lity by a fallen soldier, the monthly amo- the legality and regularity of the work, order to end the illegal decision based on unt of 10 % of the base was recognized. found that the Secretariat for Social the apparent violation of the substantive YUCOM in administrative proceedings Welfare of City Administration of Bel- law on which the Administrative Court filed a motion to correct errors in the grade - Department for veteran and of the Republic of Serbia twice reached decision under Art. 209 of the Admini- disabled protection, made the omission the decisions in the final and enforceable strative Procedure Code, so that inste- in the work as it had not acted upon by judgment and the same view was taken ad 10 %, 60 % would be stated in the the final decision of the Administrative by the Ombudsman in the procedure of disposition decision, which would have Court of Serbia, despite being constitu- controling the work of the administrati- legal effect from the date from which the tionally and legally obliged to act upon on. State Secretary at the Ministry of La- decision being correct is to produce its court decisions. It also stated that it was bour and Social Affairs called YUCOM’s legal effect. Lawyers’ Committee for Hu- necessary that the Secretariat of Social lawyer in order to inform her that the man Rights stated that the basis for the Welfare determine responsibility of Ministry had reviewed the case, but co- proposed correction provision of Article acting officer, or officials regarding this uld not respond because of the ongoing 33 Paragraph 2 of the Law on Basic Ri- failure, which is a rarity in the practice preparation of the decision of the Admi- ghts of Veterans, Disabled Veterans and of the Ombudsman. nistrative Court, and that it would react Families of fallen soldiers, which provi- Proceedings before the Ministry of if necessary after the third administrative des that family disability for the benefi- Labour, Employment and Social Affairs: dispute in this case ends. It was noted at ciary who has the right to it, as a mem- Lawyers’ Committee for Human Rights this meeting that the Ministry has taken ber of the family of the fallen soldier ( ... YUCOM addressed the Ministry of La- measures in order to sanction the per- ) , is 60 % of the base . bour and Social Affairs in 2013 deman- sons responsible for the unlawful condu- Department of Social Services, in- ding to urgently respond in accordance ct in this case, in accordance to the law . formation and local self-governance of with the powers and revoke the decision The judgment of the Administrati- city municipality Savski venac, acted at of Secretariat for Social Security - Se- ve Court of the RS (dispute of full juris- the request of YUCOM, followed by ctor for veteran and disabled protection diction): On the occasion of the third D.V. being paid family residual disabi- of the City of Belgrade, on the basis of administrative litigation in which the lity in legal terms, that is still realized official oversight for apparent violation Lawyers’ Committee for Human Rights today. of the law. YUCOM considered that the provided expert support to D.V., the response of the Ministry of Labour and Administrative Court in the dispute of Social Affairs was necessary because, des- full jurisdiction, which is a rarity in our pite the reactions of the Ombudsman, judicial practice, decided on the claim Department of Social Welfare of City of D.V. and found her right to family Administration of Belgrade - Depar- disability, so the court gave approval to tment for veteran and disabled protecti- the decision of the Department of Social on, does not respect the judgment of the Services, information and local gover- Administrative Court, but in response to nance of the city municipality of Novi the Ombudsman stated that the opini- Beograd no. 580-91/10 of September on of the Administrative Court was not 14th 2010, as the only solution on the acceptable. Moreover, as an explanation basis of which the right to family disabi- for the rejection of the opinion of the co- lity was granted to the party.
YUCOM 2013 / Annual Report / No 1- 23 Y1 Broj 1, Decembar 2013. YUCOM 2013 izveštaj o radu 4 A Anti-dis- crimina- tion mec- hanisms in practice: the way to equal opportu- nities for adequate housing
24 - YUCOM 2013 / Annual Report / No 1 A 4 Anti-discrimination mechanisms in practice: the way to equal opportunities for adequate housing
CURRENT SITUATION AND CONTEXT
For many years the right to adequa- also necessary to provide adequate living te housing is facing the risk of systemic conditions for returnees under the read- discrimination in Serbia. Marginalized, mission agreement. Providing the right vulnerable groups do need more gover- to social housing is a must for vulnerable nment support in ensuring decent ho- individuals, since they are in need of this using conditions of each individual. By kind of help, giving the fact that housing implementing the laws and the Consti- is the highest financial outlay. Among tution, or by issuing general and indivi- the above categories there are also often dual decisions and trough acts of public individuals who are being segregated on officials, exercising this right is often many grounds (e.g. Roma, who are also denied to socially vulnerable citizens, or internally displaced persons or returnees even entire groups. This right belongs to under the readmission agreement, and the corpus of basic social and economic socially disadvantaged). rights, and is an important segment of After the collapse of socialism and the the right to an adequate standard of li- disintegration of Yugoslavia, there was a ving. Roma, refugees, internally displa- rapid liberalization of housing policy, ced persons and returnees under the which in some cases led to the fact that readmission agreement2 are in greatest this sector is less regulated than in some need for programs such as social housing Western European countries. According and social housing under protected con- to the Guidelines on Social Housing by ditions (SSZU). Roma are the most dis- United Nations Economic Commission criminated group in Serbian society, and for Europe (UNECE), the most impor- a large part of the Roma population lives tant changes in housing policy were: 2 EU-Serbia Agreement on readmis- in informal (“unhygienic”) settlements general deregulation (mostly of prices) sion was signed along with the Agreement on visa liberalization that are systematically being displaced, and the reduction of state intervention; on September 18th 2007, which often without provided adequate ho- privatization of the housing sector; pri- was the first step in enabling using.3 On the other hand, due to the vatization of housing and support to the no-visa regime. The aim of this agreement is to establish fast and post-war heritage in Serbia there is still homeownership; reducing government effective procedure of identifica- the largest number of refugees and in- subsidies, especially for the construction tion and safe return of persons that do not fulfill (or do not fulfill ternally displaced persons (IDPs) in Eu- of residential buildings. Given that the anymore) the requirements to rope, which also are in need for adequ- most of these changes were implemented entry, stay or settle in territory of any EU member state or Serbia. ate housing. This would enable them to without institutionalization and adequ- This agreement came into force continue to live normally in these new ate legal and institutional framework, on Hanary 1st 2008. Source: circumstances. Although Serbia is con- there had been a weakening of the so- Government of Republic of Serbia, Office for European integration sidered to be safe and secure country, it cial housing sector in the post-socia- http://www.seio.gov.rs is still at the top of the list of countries list countries of Eastern Europe. Rapid 3 http://www.rts.rs/page/stories/ sr/story/125/Dru%C5%A- from which originate asylum seekers in privatization has left too little buildings 1tvo/1312896/Amnesti+osu%- Western Europe. For this reason it is available for social housing or housing C4%91uje+iseljavanje+Roma. html
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with a rental fee that is acceptable for of the right to adequate housing, in the vulnerable groups, as well as an inadequ- 2009 – 2011 period 15 evictions of over ate legal framework for social housing. 330 Roma families and more than 1,500 The main actors in the field of housing Roma men and women were documen- construction have become private actors ted. Most of the evictions were carried that construction according to the mar- out in the short term, without consul- ket price, which has reinforced demands tation with the persecuted population, for greater state role in the regulation without the protection of their personal of social housing. According to UNH- property, provision of adequate alter- CR estimations from 2011, due to the native accommodation and without an violent conflicts in this territory during adequate remedy.5 the nineties, in Serbia there were 70.550 Roma IDPs face additional difficul- refugees from the former Yugoslavia ties in excersizing the right to adequate and 981 returnees. According to same housing. According to the Commissariat estimations, there were also 210,000 in- for Refugees and Migration of the Repu- ternally displaced persons from Kosovo, blic of Serbia, nearly 22,500 Roma IDPs 80,000 members of the Roma, Ashkali were registered in the database of the and Egyptians. 80 % of the approxima- Commissariat, while only 1,200 live in tely 97,000 IDPs expressed the need to collective centers.6 This shows that a very find more permanent accommodati- high percentage of internally displaced on options. Most of them are living in Roma have no support of the system af- collective centers and inadequate private ter displacement. Another problem that accommodation. In order to integrate in the members of this population are fa- the local population, it is necessary to cing is the existence of “invisibles” - per- find permanent and appropriate solution sons who have no identity documents. to their housing problems. On the other hand, to prove that they Roma, one of the largest ethnic mi- fulfill the criteria for eligibility for social norities, live in far worse conditions than housing, it is essential to have identifica- the rest of the population - mostly in tion documents in order to collect the overcrowded settlements of poor quality, required documentation. Roma orga- isolated areas without running water or nizations are trying to provide identity electricity.4 Despite poor housing condi- documents to at least one member of tions, force eviction remains a persistent every Roma family in order to facilitate problem that affects the Roma commu- the resolution of family housing. nity in Serbia. Almost every eviction was According to the Commissariat for accompanied by human rights violations Refugees and Migration of the Republic due to failure in ensuring adequate or al- of Serbia, at the moment there are 29 ternative accommodation. It is a fact that collective centers where 2,438 people Roma are particularly at risk of inadequ- live.7 A significant number of vulnerable ate housing, and since the conditions in refugee families fail to fulfill the criteria which they live are below the minimum and requirements for using social hou- criteria for adequate housing, it is ne- sing to live in, so they are condemned 4 Analysis on main obstacles and cessary to take serious action regarding to live in uncertain, unresolved and di- problems in access to the right the care of vulnerable members of the fficult situation (usually in collective or of adequate houseing for Roma, Praxis, Belgrade, 2013, p. 8 – 9 group. Housing of Roma is rarely being private accommodation). Refugees, in-
5 http://www.crnps.org.rs/wp-con- considered separately from their social ternally displaced persons and returnees tent/uploads/Platforma-za-ostva- marginalization, poverty, exclusion and under the readmission agreement, often rivanje-prava-na-adekvatno deprivation. Roma usually live without cannot meet the criteria of the compe- stanovanje.pdf access to basic services and commodities, tition because they have no permanent 6 National Strategy for Resolving the Problems of Refugees and while the extremely small number of bu- residence (in last five years) in the muni- Internally Displaced Persons in ildings where they live is being legalized cipality which announces a competition. the 2011-2014 period, Official or in the process of legalization. Accor- Refugees do not have citizenship of the Gazette no. 17/2011 ding to the Platform for the realization Republic of Serbia, while returnees who 7 www.kirs.gov.rs
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are citizens of Serbia have difficulties in country in which they were previously proving that. The largest part of the rea- settled. Usually these are one-room or lized projects of construction of housing two-room housing units for multigene- units, was designed to address housing rational families exposed to poor hygie- issues for persons living in collective nic conditions. According to the latest centers and in function of their shutting data, in Serbia there are 2,128 returnees down. On the other hand, the returnees under the Agreement on readmission, upon readmission agreement usually and accommodation is nor secured for face much more severe conditions than 114 of them.8 8 http://www.kirs.gov.rs/docs/read/ those they have enjoyed in a foreign Izvestaj_2013.pdf
LEGAL AND STRATEGIC FRAMEWORK
International Framework The right to adequate housing is gua- On the other hand, the International ranteed by numerous international do- Covenant on Economic, Social and Cul- cuments and defined in different ways. tural Rights from 1966, Article 11 emp- However, the principles contained in hasizes that states parties recognize the these legal instruments are the same, and right of everyone to an adequate stan- they are the following: the right to human dard of living for himself and his family, dignity, the principle of non-discriminati- including adequate food, clothing and on, the right to decent living conditions, housing, and to the continuous impro- the right to choose one’s residence, the right vement of living conditions, and that to freedom of association and expression, States shall take appropriate measures to the right to security of the individual, the ensure the realization of this rights and right of access to information, the right to to this aim they recognize essential im- 9 Universal Declaration of Human justice and non-interference in personal portance of international co-operation.10 Rights, Art. 25, Official Gazette no. 0/48 privacy, family life, inviolability of the International Convention on the Elimi- home or correspondence. nation of All Forms of Racial Discrimina- 10 International Covenant on Econo- mic, Social and Cultural Rights, Article 25, Paragraph 1 of the Uni- tion obliges member states to prohibit Art 11, Official Gazette – Internati- versal Declaration of Human Rights from and eliminate racial discrimination in onal agreements no. 7/1971 1948 emphisize that everyone has the all its forms and to guarantee the right 11 International Convention on the Elimination of All Forms of Racial right to a standard of living adequate to of everyone to equality before the law, Discrimination, Art. 5, Official Ga- the health and well-being of himself and without distinction as to race, color, or zette – International agreements of his family, including food, clothing, national or ethnic origin, notably in the no. 6/67 housing and medical care and necessary enjoyment of certain rights, including 12 The Law on ratification of UN 11 Convention on the Elimination social services, and the right to security the right to housing. Similar provisions of All Forms of Discrimination in the event of unemployment, sickne- are contained in the UN Convention on against Women , Official Gazette ss, disability, widowhood, old age or the Elimination of All Forms of Discrimi- – International agreements no 11/81, UN Convention on the other lack of livelihood in circumstan- nation against Women, Article 14, which Elimination of All Forms of Discri- ces beyond his control, and is clearly obliges the state to provide adequate li- mination against Women, with the Law on ratification , Official Ga- a need for every individual to, among ving conditions, particularly in relation zette – International agreements other things, have adequate housing.9 to housing.12 no. . 13/02
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The 1951 UNHCR Refugee Con- in order to provide a decent livelihood vention regulates the issue of residence to all those who lack in sufficient reso- so that the States Parties will, under Ar- urces.15 However, despite the broad legal ticle 21, if the issue falls under the impa- framework within the European Union, ct of laws and regulations or is a subje- there is no standardized model of hou- ct to control by the public authorities, sing policies among member countries. apply it to refugees lawfully staying in In April 2006 the European Parliament their territory, which can be advantageo- adopted the European Housing Charter, us procedure in any case, and which can and in May 2007 the Decision of the not be less favorable than that which, European Parliament on housing and re- under the same circumstances, is appli- gional policy, which gives great political cable to foreigners generally. Internati- significance to the necessary improve- onal Convention on the Protection of ment of living conditions in the EU. the Rights of All Migrant Workers and Also, the second UN Conference on Members of Their Families states that Human Settlements, held in 1996 in migrant workers enjoy equal treatment Istanbul, where, apart from the state, with nationals of the State of employ- some non-governmental organizations ment in relation to the right to housing, participated, adopted the Istanbul Decla- including privileged programs, housing ration, which commits itself to achieving and protection from the abuses of the the objectives of providing housing for rent.13 In addition to these, similar pro- all residents and establishing a sustaina- visions are contained in the International ble development of human settlements Convention on the Rights of the Child (Ar- in the context of progressive urbanizati- ticle 27), as well as the conventions of on in the world. In this process not only the International Labour Organization governments, but also other government concerning the right to adequate hou- partners, such as civil society organiza- sing and living standards (Convention tions, should participate in order to en- No. 82 , 110, 117, 161, 169). sure protection from discrimination and In contrast to the above mentioned equal access to adequate housing for all conventions that are legally binding, people and their families. At the same there are several documents that relate conference the Habitat Agenda was to this area that are politically binding. adopted, which, in Article 11, stresses Article 10 of the 1969 Declaration of that „everyone has the right to an adequ- social development and progress states the ate standard of living for himself and his need to improve the conditions of life family, including ( ... ) adequate housing for all members of society, so as to enable ( ... ) and the continuous improvement everyone, especially people with low in- of living conditions“. comes and families with more members, According to UN - Habitat the right adequate housing and social welfare. to housing is considered to be progres- Revised European Social Charter guaran- sive legal obligation, which means that tees social and economic human rights. states are obliged to constantly strive to Article 31 of the Charter states:“In or- strengthen economic, social and cultural der to ensure the effective exercise of the rights, including the right to adequate right to housing, the Parties undertake housing. The idea of progressive realiza- measures aimed at improving access to tion requires the state to endeavor faster, housing of an adequate standard, to more efficient and full exercise of the ri- 13 International Convention on the prevent or reduce homelessness with a ght to housing. One way to achieve this Protection of the Rights of All view to its gradual elimination, to make is to adopt legislation concerning hou- Migrant Workers and Members of Their Families, Art. 43 the price of housing accessible to those sing. UN Habitat emphasized that all 14 14Revised European Social Charter, without adequate resources. Charter of countries, regardless of their level of eco- Art. 31, Official Gazette – Interna- Fundamental rights of the European Uni- nomic development and available reso- tional agreements no. 42/09 on, Article 34, guarantees the right to urces, have a minimum, basic obligation 15Charter of Fundamental rights of social assistance and housing assistance, to meet the minimal level of basic rights the European Union, Art. 34
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16 International Instruments On Housing Rights of Un-Habitat, consultancy report compiled by promised in the International Covenant the right to housing can sometimes be the Centre on Housing Rights and on Economic, Social and Cultural Ri- in conflict with private property rights, Evictions (COHRE), 2003, p. 31. ghts. Thus, a state where a significant but that the international legal consen- UN Habitat, number of people do not have basic shel- sus states that the right to property must 17 Subcommittee Special Rappor- teur for the promotion and imple- ter and adequate housing, prima facie is undoubtedly give way to the larger social mentation of the right to adequ- not fulfilling its obligations under the good of the community.17 ate housing, the Regulations on Covenant.16 UN Habitat also recalls that the right to housing Overview of international and national legal instruments, the source: http:// www.unhabitat.org/downloads/ docs/3667_74890_HS-638.pdf. National Framework The Constitution of the Republic of social development policies and measures Serbia from 2006, Article 21, prohi- to guide and encourage the development, bits discrimination and points out that ownership and obligations, and other re- the prohibition of any discrimination, lationships that are of interest to the Re- direct or indirect, on any grounds, public of Serbia”. particularly on race, sex, nationality, The Law On The Prohibition Of social origin, birth, religion, political Discrimination adopted in 2009 defi- or other opinion, property status, cul- nes discrimination as any unjustified ture, language, age, mental or physical differentiation or unequal treatment on disability.18 Article 48 is also to be man- the basis of presumed or actual personal tioned, which regulates the promoti- characteristics, including nationality on of respect for difference as follows: and ethnic origin. In the law, there is a “With measures in education, culture special part that is closer related to the and public information, the Republic discrimination of national minorities of Serbia shall promote understanding, and prohibits discrimination against et- appreciation and respect for differences hnic minorities and their members on arising from specific ethnic, cultural, the basis of nationality, ethnic origin, linguistic or religious identity of its ci- religious belief and language. tizens.” In the Constitution there is no Art. 2 of the Housing Act19 prescri- clear provision on the right to adequate bes that states should take measures to housing, but paragraph 1 of Article 69, create favorable conditions for housing which refers to social security states as construction and provide the conditions follows:”Citizens and families in need for meeting the housing needs of vulne- of social assistance in order to overco- rable people in accordance with the law. me social and existential difficulties and On the other hand, Article 5 regulates create the conditions for satisfying basic the conditions under which one may (or needs, have the right social protection, may not) be forced to move, as follows:” the provision of which is based on the If a person moves into an apartment or principles of social justice, humanism common areas of the building without a and respect for human dignity,” so that legal basis, or to an apartment without a it can be concluded that these categories signed contract or the legal basis on whi- of people are entitled to social housing. ch the contract is concluded is nullified, The basis of the concept of legal regulation the landlord, that is, a person who has a of social housing concept is located in Art. legal interest may before the municipal
18 Constitution of the Republic 97, which states that: “The Republic of authority responsible for housing requ- of Serbia, Official Gazette no. Serbia shall organize and provide social ire his eviction.” 98/2006 security , sustainable development, basic Social Housing Act, Article 2, de- 20 Housing Act, Official Gazette no. objectives and directions of regional and fines social housing ashousing of an 99/2011
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adequate standard to be ensured through nally displaced persons and other vulne- the support of the state, in line with the rable migrant groups, ( ... )”. strategy of social housing and programs for The strategy clearly indicates the the implementation of the strategy, to ho- manner in which these social groups will useholds that for the social, economic and be further protected, how will be en- other reasons can not obtain housing at sured principle of equality, equal rights market conditions.20 Paragraph 3 of Article and equal treatment, in which areas are 10 of this law gives priority to the provisi- the most common cases of discrimina- on of social housing to persons belonging to tion towards vulnerable groups in the vulnerable social groups, such as young pe- society, how to improve the situation in ople, orphans, single parents, families with certain areas, in which direction to “act” many children, single households, persons in order to further legislative reforms over 65 years of age, persons with disabili- and the adoption of by -laws as well as ties, personal veterans, family veterans, ci- to improve their protection and others. vilian war invalids, refugees and internally The goal is the full integration of national displaced persons, Roma and other socia- minorities into the social life, along with lly vulnerable groups. This law states the preserving and developing their natio- necessity of the adoption of the National nal and cultural peculiarities. Among the Strategy on Social Housing, in furtherance measures for achieving these goals active of established national housing policy and participation of Roma in planning their measures for its implementation. housing needs and respecting their right to The strategy of prevention and protecti- participate in decision making is proposed. on from discrimination emphasizes that All this with regard to all matters that con- all special measures (affirmative actions), cern them, especially in local government, introduced to achieve full equality, pro- including relocation and method of social tection and advancement of persons or integration and provision of conditions for groups of persons who are in an unequal social housing, in accordance with inter- position, shall not be considered discri- national standards and guidelines for the mination. These are the measures that resettlement of people living in informal are state intervention and which are re- settlements. It also states that, the status of gulated by law, and which is the essence refugees and internally displaced persons of achieving full equality for specific gro- has been promoted bz numerous measures ups of people.21 Measures are temporary of the Republic of Serbia, but it is necessary because by the achievement of equality to implement other measures to ensure that the need for their existence is exhausted. their position will be further enhanced. As Section 4.1 of the Strategy emphasizes for social housing, in the “Housing” secti- the “vulnerable social groups are parti- on, it stands out that, except for social ho- cularly exposed to discrimination and using in a supportive environment , and discriminatory treatment in certain are- other forms of housing for refugees and as. ( ... ) It is evident that discrimination internally displaced persons (social housing 20 Social Housing Act, Official and discriminatory treatment of expo- rental or ownership) will be encouraged, in Gazette 72/2009 sed persons and groups on the following order to achieve a higher degree of access to 21 Strategy of prevention and prote- ction from discrimination, Official grounds: on the basis of belonging to the right to adequate housing of these vul- Gazette no. 60/13 national minorities, ( ... ) refugees, inter- nerable groups.
Strategy for improvement of so- the housing problems of socially vulne- cial position of Roma in several places rable groups in Serbia responsibility of emphasizes the need for adequate hou- local governments and their respective sing and specifies the international and departments. There is a separate part national legal framework that allows of the Strategy, which describes the cu- 22 Strategy for improvement adequate housing to the Roma popu- rrent situation. It is pointed out that the social position of Roma, Official lation.22 The strategy states that solving majority of Roma live in very poor hou- Gazette no. 27/09
30 - YUCOM 2013 / Annual Report / No 1 A 4 Anti-discrimination mechanisms in practice: the way to equal opportunities for adequate housing sing conditions, that the village in which ugh the actions of local governments, in they live are usually illegal, overcrowded, cooperation with international organi- with a small number of residential units zations and the associations of citizens. and the distance from the basic social The most important part are the recom- facilities and services. Most Roma do mendations for further action to define not possess the proper documentation the long-term activities that must be of ownership of their homes or land, continuously implemented and impro- which further complicates the problems ved, in line with the key principles that of Roma housing. The most difficult should be kept in mind when planning housing situation of Roma is with per- and managing the process, and defining sons displaced from Kosovo and retur- measures to improve the situation of nees (which is a double reason for the Roma settlements and housing situati- provision of social housing in protected on of Roma (one of these measure is the conditions) mainly from the EU, becau- full participation of Roma in the process se it is burdened by unregulated issue of of improving the living conditions - in residence or acceptance, as well as legal the formulation of housing policy and problems of reintegration. It is especia- defining programs and projects for the lly important to note that in the case of improvement of settlements and hou- eviction of tenants from an apartment sing). The main objective of improving or property, the current legislation does housing conditions “should be to ensure not provide any protection or security the legal use of housing and property in to persons who have illegally settled on all aspects, enabling healthy life of fami- the land or in the building, and in most lies and individuals, the relief for women cases these people are left to themselves. and children, providing adequate condi- Under international human rights law, tions for a lifestyle that is acceptable to individuals have the right to protection Roma, as well as fostering the culture of against forced eviction, including secu- living in what is accepted by the whole rity of ownership and legal protection of society.” Among the recommendati- against forced eviction. The strategy ons in relation to housing conditions, as then lists several examples of good pra- a very important may be singled out:” ctice and existing initiatives for the de- Returnees should be included in the velopment and improvement of Roma programs of housing, social housing and settlements. They are being carried out alternative forms of housing (purchase through four key channels - through the of abandoned household living together activities of the Government of the Re- with elderly, etc.)” public of Serbia and the ministry, thro-
Action plan for the implementa- aid to improve housing conditions external tion of the Strategy for Improvement to the improvement of Roma settlements. of Roma in the Republic of Serbia for Measure 4.6. is applicable to solving hou- the period until January 1st 2015 pro- sing problems of internally displaced Roma vides several affirmative measures relating persons. This measure provides housing to the exercise of the right to social housing. support programs for Roma - IDPs living Measure 2.6. refers to the resolution of ho- in formal and informal collective centers, using for about 500 Roma families from equal participation of Roma - IDPs in pro- the program and resettlement of returnees grams for addressing informal settlements, under the readmission agreement through the provision of funds from international social housing programs. As part of this donors and from IPA funds and care for measure the following is privdied: acquisi- Roma residing in collective centers to pro- tion and granting rental housing in public viding housing solutions. Finally, measure ownership, acquisition and granting villa- 5.5. governs the resolution of housing and ge households, as well as the allocation of accommodation of returnees in detention
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centers, and proposes maintaining the ac- resolution of problems of the refugees and commodation capacity of existing centers IDPs, as well as the inclusion of returnees and financing for services of accommoda- in programs of housing, social housing and tion and food at the reception centers, the alternative forms of housing. All these me- inclusion of returnees under the readmis- asures should be implemented by the end sion in local action plan (LAP) for the of 2014.
National Strategy for Resolving the possibility of buying an apartment. In the Problems of Refugees and Inter- order to improve the system of solving ho- nally Displaced Persons in the peri- using problems of refugees, especially the od from 2011 to 2014 is expression of most vulnerable groups, which would be the political will to offer help and concre- based on clearly defined needs, criteria, te solutions to all refugees and internally priorities and coordinated cooperation of displaced persons, in order to be able to national, local and international subjects, independently make decisions about their as well as the launch of its application, future.23 In section 5, which refers to social some of the measures relating to social hou- protection, it is emphisized that to the refu- sing that were proposed are: providing ho- gees belong part of the rights in the field of using solutions for users of collective centers social protection, which include a one-time that are being closed (help in materials for financial aid, as well as the right to hou- construction, purchasing households with sing in the building for social housing in a garden, prefabricated houses, social hou- protected conditions, in accordance with sing, stimulating construction of cheap ho- the decisions of governments of the exten- using and facilitating the purchase under ded rights. favorable conditions), the application of In section 6, which relates to housing, the provisions of the Law on refugees rela- it was pointed out that, except for social ted to the meeting the housing needs of re- housing in protected conditions as an addi- fugees, as well as the Law on social housing 23 National Strategy for Resolving tional form of social protection, more than for all refugees -social housing beneficiaries. the Problems of Refugees and Internally Displaced Persons in half of persons accommodated in collective the period from 2011 to 2014, centers have opted for social housing with Official Gazette no. 17/11
Strategy for Reintegration of Re- of returnees through social housing pro- turnees under the Readmission Agree- grams and regulating the legal status of ment, in part related to housing policy, unhygienic settlements and the constructi- emphasizes that the information availa- on of basic infrastructure, which will also ble on the structure of returnees it can be contribute to solving the housing problem. concluded that a large number of them As one of the most important reasons belong to the Roma national minority, for the adoption of the National Strategy which is facing major existential pro- for social housing, the government points blems in the Republic of Serbia24. Mee- out the huge gap between the needs and ca- ting the housing needs of the Roma has pabilities of a large number of households been identified as a priority issue, and in Serbia to independently solve housing the main objective of integration of Roma needs, as well as the almost complete ab- settlements emphasizes the provision of sence of the system of housing support to basic living conditions, such as access to such households.25 The state must provide basic services and infrastructure. One of more support to the weakest in the area the planned activities is to create conditi- of social housing, and improve standards 24 Strategy for Reintegration of Returnees under the Readmis- ons and provide support to strengthen the of living, for which private housing funds sion Agreement Official Gazette capacity of local governments for housing and investors have no interest. The appli- no. 15/09 of returnees, which includes assistance in cation of quasi-market mechanisms are 25 National Strategy for social hou- providing resources and living conditions recommended, such as the promotion of sing, Official Gazette no. 13/12
32 - YUCOM 2013 / Annual Report / No 1 A 4 Anti-discrimination mechanisms in practice: the way to equal opportunities for adequate housing competition, the opening of social housing Part of the strategy relating to the to socially sensitive actors from the private provision of apartments for housing in and nonprofit sectors, encouraging vario- social protection programs, as well as to us forms of public-private partnerships, the beneficiaries of the program (which the introduction of standards of quality are in a special need for housing su- of services and so on. The strategy well pport) includes refugees and internally recognizes that the Constitution of the displaced persons, returnees under read- Republic of Serbia does not directly re- mission agreements and households li- gulate the right to housing, nor does it ving in informal settlements. As a form define the public interest in this area. of good existing practices an example Also, housing poverty is not included of the “Social Housing in Supportive in the social security system, nor the Environment” is provided, which is measures for the vulnerability of tho- aimed primarily at the closing of colle- se who do not have sufficient funds to ctive centers for refugees and internally meet minimum housing needs are esta- displaced persons. Part of the strategy blished. It also states that more precise relating to the construction of housing data on the housing needs of vulnera- for purchase under the non-profit terms ble, disabled, elderly and others ai- emphasizes that “if there is a special med at institutional accommodation, public interest in case of certain social should be collected by the Centers for groups, in the collection and allocation Social Work in coordination with ot- of funds for the housing needs throu- her agencies, and that this obligation gh this type of housing assistance, the is not prescribed by the law and that competent institution, ie . ministries (of there is no unique methodology for defense, education, interior, health) and monitoring. Therefore, social welfare the Commissariat for Refugees, in the centers, local housing agencies, and other case of refugees and IDPs , formulate, authorities and institutions of city and with the assistance of the State housing municipal governments will be in charge agency, special programs, that should of exploring the social housing needs. The be afterwards approved by the Gover- strategy clearly separates the jurisdiction of nment. Approved programs are imple- the central and local governments, which mented by the State haousing agency, are determined by the Law on Social Ho- and in the case of refugees and IDPs, using, and appeals to the good cooperation these programs are implemented by the between stakeholders. Since a large burden Commissariat for Refugees.” Subjective is being shifted from the central to the lo- subsidy, housing allowance in the pay- cal level, it is necessary to target the real ment of the rent is another form of needs which can only be recorded at the lo- housing assistance. It is intended for all cal level. This task should be performed by users of social housing, as an additional local housing agencies, and if they are not measure of the aforementioned hou- established, the relevant local government sing programs. The primary purpose of body. In the beginning, we need to focus these measures is to cover the real costs on the assessment of housing needs in lo- that a beneficiary can not pay because cal housing strategies, based on the criteria of low income, as well as an increase in of the Strategy, and later on more precise the price availability of these programs information on the actual needs, based on to individual households. In addition, the results of the implemented program of the Strategy provides tax incentives for social housing. The establishment of a housing that are also kind of housing system for continuous monitoring of support. These represent type of subsi- social housing needs is also suggested, dies without direct payment and can be what for it is necessary to strengthen directed at persons who are entitled to the technical and professional capacity resolve housing issues on the basis of the of local housing agencies and conduct Law on Social Housing (beneficiaries of ongoing training of professional staff. social housing) and/or natural or legal
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persons who are obtaining, renting or state and local level, as much as possi- salling the flat under non-profit con- ble, when obtaining housing units. It is ditions for beneficiaries rs of social ho- proposed that an additional source of using , and if this program is provided funding are donations that come from by the Government. Although the law international funding institutions and on social housing provides only funding are aimed at the most vulnerable and from the budget of the Republic of Ser- specific groups (refugees, IDPs, Roma bia, due to high financial difficulty of residents of collective centers), but also housing and lack of funds in state and that these donations are not a source of local budgets, the Strategy states that it funding for long-term programs. is necessary to combine funds from the
THE IMPLEMENTATION OF REGULATIONS AND BARRIERS TO EXCERSIZING RIGHTS
Examples of good practice Social housing in a supportive en- social protection that establish social welfa- vironment (SHSE) is a program of hou- re services provided by local governments sing and social care for the most vulnerable and the manner of exercising established people - refugees, internally displaced per- rights. This concept was created in order sons, Roma, people with disabilities, people to adequately address the housing problems with chronic illnesses and those living on of refugees and displaced persons, many of the street. This concept was launched in whom still live in the so-called collective Serbia by the international NGO Hou- centers. Criteria for SHSE not uniformly sing Center in 2003, which has enabled defined in the general acts of local govern- it to be implemented and financial support ments, which may lead to legal uncertainty 26 http://www.housingcenter.org. from international institutions through the and unequal treatment in the exercise of rs/index.php/socijalno-stanova- nje-u-zasticenim-uslovima Ministry of Labour and Social Policy of the the rights of citizens. In fact, SHSE inc- Republic of Serbia and the Commissariat ludes the right for accommodation in a 27 Housing Center is engaged in the 26 construction of housing units for Refugees and Migration. SHSE is not separate building of social housing for vul- and the creation of a supportive a legal obligation, but it is part of the mul- nerable families and individuals who are environment for beneficiaries, which is also provided by ti-year project, and is regulated in a num- beneficiaries of financial social assistance, 27 the centers for social work. ber of local action plans. Following the refugees and internally displaced persons According to their statistics, 931 adoption of the Law on Social Protection who are in need for housing and do not residential units in 42 municipa- lities in Serbia were built, where in 2011, which does not recognize the con- posses an apartment or single family resi- about 2800 people were settled. cept as a special kind of service, a number dential house in the territory of the Repu- Source: http://www.housingcenter.org. of local governments adopted general acts - blic of Serbia, either owned or co-owned by rs/index.php/socijalno-stanova- decisions on the rights (and obligations) of them, who also do not use social or public nje-u-zasticenim-uslovima
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housing under a lease and are not able to pality) to take care of the living conditions solve the housing problem in another way in the house as follows: respect for the house and that are not eligible for placement in a rules, maintenance of common areas, the social care or other family. The right to use preservation of property in the facility as these services is granted by the local social well as to provide assistance and support to welfare institutions - the Centre for Social beneficiaries in relation to the rights and Work, which is, upon the consent of the obligations in relation to housing. SHSE local authority body, responsible for social beneficiaries are generally partially exempt protection. It names, among users of social from payment of for utilities in these apar- housing, a so called host of the object for tments. The full effects of SHSE are expe- 28 Regional Housing Programme: social housing. He signs the contract and cted in the future. http://www.regionalhousin- gets paid monthly from the city (munici- gprogramme.org/28/about-rhp- overwiew.html
29 Among the activities of the Commissariat for Refugees and Regional Housing Program (RHP) main state institutions for the imple- Migration in the Republic of is a joint regional initiative of Bosnia mentation of RHP is the Commissariat Serbia in 2013 we can note the following: 15 more vulnerable and Herzegovina, Croatia, Montenegro for Refugees and Migration. Housing refugee and internally displaced and Serbia , which is part of the Sara- solutions in RHP are conducted in families will move in rural households in the beginning of jevo Process on Refugees and Displa- three ways: by returning to the place of 2014. About 12 million RSD, the ced Persons. This process is initiated in origin (return), in place of the original value of all homes, was collected through the action of selling 2005 and reactivated in April 2010 at displacement (local integration) and “Key” stamps that were charged the Belgrade Conference through the through granting placement in a social for postal deliveries in domestic adoption of the Belgrade Declaration care institution. Donors Assembly of traffic from 30 January to 14 28 February this year. Contracts for (in November 2011). The aim of this Regional Housing Program approved the purchase of rural houses for initiative is to contribute to solving the on the third wave of project proposals refugees and internally displaced persons have been signed with long-term displacement and inadequ- on December 6th 2013 at the third 12 local governments (Sečanj, ate housing of refugees and displaced meeting of the Board of RHP. These are Kragujevac, Grocka, Lučani, Bačka Topola, Bačka Palanka, persons in former Yugoslavia, through, two new projects that will be financed 29 Kuršumlija, Svrljig, Kučevo among other instruments, providing a from the RHP ‘s Fund. The amount Paraćin, Vladimirci, Sremska permanent and adequate housing so- of 11 million euros is intended to en- Mitrovica). In Kragujevac, Lučani and Grocka planned it was lutions. This initiative has the support sure permanent housing solutions in planned to be settle two families, of the international community, inclu- the areas of local integration for 715 and in other places one. Source: the Commissariat for Refugees, ding the European Union, the United refugee families in Serbia, through four and Migration of Serbia: States, the Council of European Deve- different models of housing. In Serbia http://www.kirs.gov.rs/articles/ navigate.php?type1=3&lang=- lopment Bank (CEB), the UN High for these purposes there are 235 apar- SER&id=1986&date=0 Commissioner for Refugees (UNHCR) tments, 80 prefabricated houses, 350 and the Organization for Security and packages of construction materials and Cooperation in Europe (OSCE). The 50 houses in the village available.
Through sending requests for access to Data on public information (Freedom of Infor- mation Request – FoI Request) to centers social for social work in several cities, we wan- ted to determine the implementation of welfare social protection measures and benefits to citizens that are related to housing. services We requested public information on the number of active users, of permanent related to and one-time financial assistance for the first ten months of 2013, and whether housing there are additional funds allocated for socially vulnerable groups that cover uti-
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lities costs or the rent, and the number vices, electricity, rent and share, and the of users of these services. We have found full amount of the market price of the out that there is a significant number of rent. Requests were sent to social welfare social assistance beneficiaries, but only a centers in Belgrade and ten other towns in few cities in Serbia allocates additional Serbia. Major cities were included, as well funds to socially vulnerable persons in as those in which there is the most complex order to enable their exercise of the right problems in realizing the rights of Roma, to adequate housing. On the other hand, refugees, IDPs and returnees under the re- cities set aside additional funds, which admission agreement, where we took care of cover a portion of fees for municipal ser- the geographic distribution.
Number of families Number of families / / individuals who individuals who have Number of users of disco- have exercised the exercised the right to unts - subsidies on the basis right to one-time permanent financial of expenditures for municipal Social welfare institution financial assistance assistance services and rent
CSW ‘Solidarnost’, Pančevo 2672 1297 2000
CSW ‘Solidarnost’, Kragujevac 3607 3187 nema podataka
CSW Kraljevo 5676 1807 nije regulisano
CSW Valjevo 1450 750 73
CSW Vranje 68 1629 nije regulisano
CSW Ruma 1047 1286 80
CSW Zrenjanin 1883 2316 nije regulisano
CSW "Sveti Sava" Niš 1436 3410 nema podataka
CSW Novi Sad 2504 4404 762
Data obtained from the In some cities, to the users of social ces are obliged to provide a discount Centers for Social Work housing in protected conditions, subsi- or subsidy for municipal services and (CSW) for the period from dies for utilities were provided on the the rent paid through integrated bi- January 1st 2013 to Octo- basis of local decisions on social welfa- lling Infostan for households in need. ber 31th 2013 re, which are made after the adoption of Beneficiaries of these services are: be- the Law on Social Protection in 2011. neficiaries of the financial benefit (or In other cities, these incentives were cash benefits), persons with disabilities, not provided. Belgrade has established foster homes that are hosting children the following type of service - subsidies without parental care. According to the on the basis of expenditures for muni- decision of the city in 2010, the right cipal services and rent the on the basis to a discount on municipal services, of the Decision of the City on emer- as determined by this conclusion have gency measures to protect the most tenants too, but only if they reside in vulnerable citizens dating from 1995. Belgrade, which in practice excludes a Last published revision of this decision large number of Roma, IDPs and retur- in 2010, the public utility companies - nees under the readmission agreement Belgrade water supply and sanitation, that actually live in the city, but mainly Belgrade Power plants, Sanitation and in informal settlements. According to Public Enterprise for Housing Servi- the Decision on the rights and obliga-
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tions of the social welfare of the City of hot water supply, waste water disposal Belgrade30 from December 2011, hou- through sewerage and removal, tran- sing costs (electricity, telephone, water sportation and disposal of garbage. The supply, heating and other utilities and number of families that are eligible to fees), as well as repairs and mainte- receive subsidies for municipal services nance costs are borne by beneficiaries on the basis that they are social welfare of housing. As an exception from the beneficiaries, changes during the year general rule of paragraph 1 of this Ar- (the number of beneficiaries of social ticle, the City of Belgrade, depending assistance changes). The highest num- on the total income of the household ber of the families during 2013 was service user, shall bear the costs referred recorded in August - 762 families. In to in paragraph 1 of this article in who- Niš, all users of social housing in prote- le or partially in accordance with the cted conditions are entitled to a partial norms and standards of the costs to be exemption from the payment of muni- determined by a special act by the or- cipal services for consumed water and ganizational unit of City government other municipal services, according to in charge for social protection. Social the criteria and standards provided in housing in protected conditions in Bel- this decision. All users shall bear the grade can achieve socially disadvanta- cost of electricity used in residential ged and residentially unsecured persons units in which they are placed. Costs referred to in Article 2, paragraphs 1 for common electricity bills and telep- and 3 of this Decision: Serbian natio- hone are borne by all users jointly. The nals and displaced persons from Koso- funds required for the purchase of fuel vo residing in the territory of Belgrade. for heating facilities shall be paid from Rights and social services established the budget of the city of Niš. The deci- by this decision can not obtain foreign sion on Social Protection of the City nationals with permanent residence in of Kragujevac regulates the right to be the territory of Belgrade. Notwithstan- granted with subsidy for municipal ser- ding in paragraph 1 of this Article, the vices (utilities) for users of social hou- service of social housing in a supportive sing in a supportive environment, and environment and a subsidy on the ba- to the members whose income is at or sis of expenditures for utility products, below the amount of financial benefits. services and rent can realize refugees Costs are provided from the budget of 31 30 Official Gazette of the City of residing in the territory of Belgrade. the city: for the consumption of ele- Belgrade, no. 55/2011 CSW Belgrade has not provided data on ctricity up to 300 kW per household, 31 An additional requirement is that the number of beneficiaries of subsidies for water consumption up to 3m3 per these persons are accommoda- for utilities and rent, even after repeated member of the household. Also, in ted in collective centers in Bel- grade or are using another form requests. response to CSR in Kragujevac, the of accommodation, provided In Novi Sad there is the Decision right to the social discount for benefi- that household income does not exceed the basis for determining on establishing the criteria for the relea- ciaries of cash benefits on the basis of financial social assistance for se from part of the liability to pay utility the Regulation on energy-protected, ie, individuals. Also, the condition products and services in 1995, according potentially vulnerable customer, was is that individuals and families meet one of the following condi- to which the right to release of partial stated. Information on the number of tions: they are over 65 years old payment obligations for municipal ser- users of these services we have not rece- and able to live independently, that one member of the family vices has an individual or a family, who, ived. In accordance to the Decision on has established physical damage on the basis of the final decision of the Social Protection of city of Valjevo da- from 80% to 100% according to regulations on the pension competent authority, get the right to ting from 2012 and to the Amendment and disability insurance; that a a financial support (now financial so- of the decisions from 2013, the right member of the family is a child cial assistance) and the allowance for to a discount - subsidies and the cost with disabilities and the recipient of the assistance and care of care and assistance of another person of rent and public utility services was another person for any reason, and to the utility products and services established. The first subvention was a parent exercise parental rights individually, the person against (50 % of the stipulated price for each used by 39 families and the second by whom it domestic violence has municipal services): heating, domestic 34 families in 2013. been committed.
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All cities, with the exception of Bel- red. Right to recieve permanent financial grade and Subotica, provided the answer assistance was used by 4404 families in to the question concerning the number of Novi Sad. As part of the annual social users of measures of one-time social assi- welfare services, in addition to one-time stance, both families and individuals. The assistance, in-kind assistance and other most users in 2013 were reported in Kra- forms of assistance from social services gujevac, 8116 users from 3607 families. were stated. In Kraljevo 5676 families who have used one-time financial assistance were registe- 2504 4404 762
8000 1807 5676
7000 3187 3607 2672 12972000 2672 6000 1436 3410 5000
1883 2316 Number of families/individuals who have exercised the right to one-time financial assistance 4000 Number of families/individuals who have exercised the right to permanent financial assistance
3000 1047 128680 1450 750 73 Numebr of users of discounts - subsidies on the basis 2000 68 1629 of expenditures for municipal services and rent
1000
0 CSW ‘Solidarnost’, Pančevo CSW‘Solidarnost’, Kragujevac CSW Kraljevo CSW Valjevo CSW Vranje CSW Ruma CSW Zrenjanin CSW "Sveti Sava" Niš CSW Novi Sad
Data obtained from the Centers for Social Work (CSW) for the period from On the fourth of November 2013 Om- January 1st 2013 to Octo- Indepen- budsman issued an opinion holding ber 31th 2013 that the National Housing Agency, dent sta- in cooperation with the Ministry of Construction and Urban Planning and te regula- Local Government, should take all me- asures to establish and develop other so- tory body cial housing programs and thus provide conditions for housing in a supportive 32 Opinion of the Ombudsman best pra- environment for the most vulnerable , “Competent authorities to citizens in Serbia. Opinion was based develop other social housing pro- grams for the most vulnerable ctice on five complaints the users of social citizens of Serbia”, November housing services in Kamendin (Ze- 4th 2013
38 - YUCOM 2013 / Annual Report / No 1 A 4 Anti-discrimination mechanisms in practice: the way to equal opportunities for adequate housing mun), because they canceled the lease human rights. Where those affected are agreement by issuing the notice which unable to provide for themselves, the informed them that they have to leave State party must take all appropriate the apartment and hand over the keys to measures, to the maximum of its availa- the Secretariat for Social Protection of ble resources, to ensure that adequate al- Belgrade within 30 days. Complainants ternative housing, resettlement or access indicated that the cost of social housing to productive land, as the case may be, are high and often exceed the price that is available.” Recognizing that “the hu- can’t be considered as reasonable for man right to adequate housing, which people who have no income or whose is derived from the right to an adequate financial welfare is their only source of standard is of great importance for the income. In addition, the complainants exercising economic, social and cultural pointed at unfair treatment of em- rights”, Ombudsman specifically points ployees of the Secretariat for Social Pro- to the obligations of the state and its tection of Belgrade during the prema- agencies to secure, protect and prevent ture termination of the lease agreement. violations of human rights of citizens On the other hand, in the time when who are forced to move out, and their the lease agreements were signed, it co- obligation to develop programs of care uld be assumed that some of the families of the most vulnerable citizens. won’t be able to repay the cost of utili- Ombudsman’s opinion states that ties at preferential prices, regarding the this opinion shouldn’t be considered fact that their only income were disabi- for this case only but in a broader con- lity pensions and social benefits. The Se- text and in order to preclude problems cretariat informed the Ombudsman in in the future social housing programs its response, that the families who have and the establishment of standards that complained to the Ombudsman had will allow legal security and exercising discussions with the Secretariat repre- the rights of citizens. Ombudsman also sentatives, and were advised to accept proposes implementation of the me- the rescheduling of debts. Finally, when asures that do not relate only to pro- they refuse to do so, they were offered a blems of social housing in Kamendin temporary accommodation in container in Belgrade, but in order to prevent settlements in Belgrade. problems with social housing in the fu- Ombudsman indicates that the fa- ture and establish standards that provi- milies, with whom the lease agreement de legal certainty and exercising rights for social apartments, are in the gre- of citizens. He believes that adequate at social risk of homelessness, and the measures have not been implemented, General comment No. 7 by the United and if they have, besides social hou- Nations Committee on Economic, So- sing in privileged conditions (in ren- cial and Cultural Rights in its Article 16 ted apartments), there should be other stated that “evictions should not result forms of housing should available for in individuals being rendered homeless socially and economically vulnerable or vulnerable to the violation of other persons.
Commissioner for Protection of anti-Roma protest and prevented any Equality issued a public warning on gathering, which may lead to further the 7th of November 2013 which con- persecution of the Roma population in demns racist incidents in Zemun Polje, Zemun Polje. Taking into account the in the aforementioned Kamendin. Two multi-day incidents and daily calls for days before the incident , an NGO Re- lynching of this ethnic group, RCM gional Center for Minorities (RCM) expressed in its press release a special has publicly urged the relevant authori- concern about the actions of the com- ties to timely respond to the announced petent authorities, especially the police,
YUCOM 2013 / Annual Report / No 1- 39 A 4 Anti-discrimination mechanisms in practice: the way to equal opportunities for adequate housing
who were present during the protest. to leave their homes and tend to stay in The protest was calling for racial and their friends and relatives houses.34 ethnic hatred and intolerance and the In the warning issued by Commis- police, regarding the fact that it was sioner for Protection of Equality, she informed of it, did nothing to stop the strongly condemned the incidents in gathering. At the same time, according Zemun Polje and asked the authorities to residents, city official who visited to respond urgently. She warned that them on their invitation advised them the situation could escalate and recalled to isolate themselves in the house and to on previous similar cases that involved “pay attention to their hygiene.” violence, calls for lynching, expre- In 2003 the City of Belgrade issued ssing hatred and intolerance towards an open call for citizens to apply for the the Roma population and ended with social housing for a limited period of serious consequences.35 Besides the five years in Kamendin (Zemun Polje). highly discriminatory behavior of the According to the needs of vulnerable inhabitants, behavior of city authori- people - refugees, war veterans, single ties of this village it is very disturbing. parents, but generally for Roma fami- Secretary of Social Welfare announced lies, the city has so far built more than the tightening of already strict criteria 18,000 m2, providing a settlement for for remaining in social housing, but more than 600 families. The settlement that would only prevent a large number of socially vulnerable categories of the of families to get only possible way of population in 626 apartments in this accommodation that they can afford. neighborhood (among whom was 91 36 These kind of incidents are sending displaced families from informal settle- a message to vulnerable groups (in this ments in Belgrade), began under certain case Roma ) that society does not accept conditions imposed by the city commis- their attempts to socialize and establish sion. The problem escalated when alle- at least the minimum requirements of gedly, most of the children in primary life, and encourage even greater segre- school got lice and scabies, and chil- gation of these groups. Regional Center dren’s parents blamed unhygienic life- for Minorities believes that the escalati- style of Roma families for this problem. on of racist rampage is in direct conne- On the 3rd of November, after the inci- ction with the sensational newspaper dent reached the media, residents of Ka- article published in “Vecernje Novosti” mendin took to the streets and caused on the 30th of October titled “Zemun a racially motivated riot, which got the Polje: Scabies among elementary school
33 http://www.slobodnaevropa. Roma residents in continuous and con- students”. RCM emphasizes that this org/content/beograd-romi-u-ze- stant fear. The assemblies and protest was another example of irresponsible mun-polju-u-strahu-zbog-napa- of residents continued, and they were journalism in a two-week period, which da/25161548.html, pristup: December 9th 2013. filled with insults and threats fueled by is directly connected with this racist vi-
34 Press Release “Racist riots in hatred and racism. They wanted the evi- olence, and that professional journalists’ Zemun Polje require immediate ction of Roma from the two blocks re- associations, political parties nor the ge- response of the state”, Regional served for social housing in which they neral public did not react to any of this Centre for Minorities, Belgrade , 33 37 November 5th 2013 were settled. Roma were insulted on problems.
35 ““Warning to the public regarding ethnic grounds, and many were forced the incidents in Zemun Polje”, Commissioner for Equality, Bel- grade, November 7th 2013
36 http://www.novosti.rs/vesti/be- ograd.74.html:462677-Zemun- Polje-Romski-geto-trn-u-oku-kom- sija, December 9th 2013
37 Press Release “Racist riots in Zemun Polje require immediate response of the state”, Regional Centre for Minorities, Belgrade , November 5th 2013
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Problems spotted
“in the field” as a part of the pro- gram of free legal aid
YUCOM followed the implemen- for social housing should be houses with tation of the regulations relating to a yard ( at the cost of the settlements adequate housing by organizing three outside the city ) instead of flats. focus groups with representatives of There has been a problem in provi- the Roma, refugees and IDPs, as well ding opportunities for vulnerable gro- as representatives of local public autho- ups to purchase an apartment. In fact, rities and NGOs relevant to this area, after a while they usually sell it again, in Pancevo, Smederevo and Ruma. The which makes another problem related lack of understanding the concept and to housing, because that apartment is framework of social housing are more no longer available for social housing. A common among employees who are possible solution would be a possibility required to implement the regulatory for repurchase, but with a clause that and policy framework. Due to insuffi- it can not be alienated within a speci- cient or incorrect information, the users fied period (5 to 10 years). Municipa- of social housing in Pancevo (mainly lity of Ruma, in accordance with their refugees and IDPs) created the expecta- Local action Plan, is actively trying to tion that after a certain period of time help vulnerable groups of people. They they may repurchased apartments they provided help to legally invisible per- are renting. Because of failed expectati- sons in order to resolve their status by ons they have refused to settle obligati- paying taxes for issuing needed docu- ons under the lease for a longer period, mentation. Citizens were required only which created the resentment of the lo- to report their status (as legally invisible cal population and deepened segregati- persons). Then the municipality conti- on. On the other hand, members of the nued to work on gathering the required Roma population face difficulties even documents and the problem was solved in the competition for social housing, for about legally invisible 600 people. due to the many technical obstacles ( Examples of good practice were also no- they are not registered at birth, do not ticed in the field, and are considered as have identity documents, they do not necessary in democratic society as a part have proof of the amount of monthly of implementing the principle of good income nor a certain level of education, governance. According to legal obliga- etc.). Also, taking into account the usual tion, the local governments provided way of living of the Roma, the majority various measures of social support (chi- felt that the facilities that are available ld support, scholarships for high school
YUCOM 2013 / Annual Report / No 1- 41 A 4 Anti-discrimination mechanisms in practice: the way to equal opportunities for adequate housing
students and Roma students, schools aforementioned decision. The six-mon- for adults attended by Roma persons, th average which were requested for within the “second chance” program). applying for renewal of the contract, The conditions were facilitated for included the overtime and vacation pay. applying for call for social housing in This resulted wrong calculation that the Ruma (they can apply only copies not total income of his family (which inc- originals, document older than 6 mon- luded all the extraordinary income) are ths are accepted, the officials of munici- higher than 80 % of average earnings pality search conditions on the Republic in the last six months in the Republic Geodetic Authority website). New me- of Serbia. M. O. lost the status of so- asures for solving housing needs of this cially vulnerable person, although this vulnerable groups are being discussed, increase of incomes was slight and 38 Official Gazette of the City of such as to repurchasing houses of local temporary, which has not permanently Belgrade no. 20/2003, 9/2004, 11/2005, 4/2007, 29/2007, population. It is estimated that it will improved the social status of his family. 6/2010, 16/2010, 37/2010, cost 180,000 to 200,000 euros, for the In Ministry of Construction and Urban 17/2012, 8/2013 whole area to be displaced and provided Planning response signed by the rele- 39 ”The legality of final individual new housing conditions. It is assumed vant Minister (M. O. previously have acts deciding on the rights, duties or lawful interests shall that sale of acquired dwellings can be a addressed to this Ministry), it is well be argued before the court in an problem, as well as their maintenance ( noted that “the earnings which were administrative dispute, unless in a particular case, the law or lack of maintenance) by the users. defined as a fixed proportion of the prescribes a different judicial As part of the free legal aid program, monthly income in City of Belgrade, protection .”. in consultations with other non-govern- were not set methodologically correct, 40 Article 25 of the contested de- mental organizations which also provide because has not taken into account the cision , namely, stipulates that against the final rankings for the support to vulnerable social groups, YU- size of the household - according to the allotment of flats to rent “legal COM took several cases in this area for number of members, which put house- protection can not be achieved “, although the proposal of representation. One of them is a case of holds with more members in disadvan- rankings issued by the Housing M. O. who was supported in his struggle tage.” Commission may be objected to for exercising his right to social housing. In addition to deficiencies related the mayor of Belgrade, through the Commission, and within 15 As a socially vulnerable person, in Mar- to the conditions and criteria for the days from the date of publicati- ch 2008 M. O. signed a lease agreement allocation of social housing for rent, on. After mayor decision on the complaints, the Commission with the Secretariat for Social Welfare this controversial decisions of the city must announce the ranking final under the program of social housing of Belgrade, that was the basis on whi- and publish it. Similarly, under the Article 28 of the Decision, for a five year period of years with the ch the lease agreement was concluded the Commission’s decision on possibility of renewal. His request for with M. O., denied the right to judi- the sale of an apartment based renewal of the lease agreement was reje- cial protection in illegitimate way. In on the final rankings may be objected to the Mayor of the City cted by the decision of the Commission early December 2013, on behalf M. O. of Belgrade, but the decision of for Housing Issues in May 2013, and at YUCOM sent a letter to the Secretariat the Mayor is final objection and “ legal protection can not be the same time he was ordered to move for Social Welfare Belgrade in form of achieved” against it. Considering out within 90 days and hand the keys appeal for a solution to his housing pro- that Article 48 of the Decision provides that “ the process to the Secretariat of Social Welfare. The blem. In addition, YUCOM initiated of calling the competition, explanation of this decision stated that proceedings to review the constitutio- compiling rankings, advertising Mr. M. O. have lost the status of socially nality of Article 25, paragraph 4, and final rankings, making individual decisions , their submission, pu- vulnerable person, considering that the Article 28, paragraph 3, of the Decision blication of individual decisions total income of his family exceeded the on conditions and methods of disposal pursuant to applicable provisions hereof governing the manner prescribed amount, and he does not lon- of flats designed by building project of of sale of flats”, this provision ger fulfills the requirements of Art. 17 of 1.100 apartments in Belgrade.38 These of the inability to obtain legal protection applies to the decision the lease agreement. His family has no articles are in violation of Article 198, rejecting the request of M.O. other way to solve its housing problem paragraph 2 of the Constitution of to extend the lease agreement and has very low financial incomes. His RS, 39 as they deny citizens the right to and on the decision according to which he was ordered to vacate wife is the beneficiary of a disability pen- obtain judicial protection, meaning to within 90 days, as well as the sion, and his daughter is unemployed. challenge the legality of the administra- decision in the second instance, in which the mayor confirmed YUCOM’s legal team found that tive act by initiating an administrative the decision of the Commission the facts were wrongly determined in dispute.40 of Housing.
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41 Applicants of the initiative also consider that it is necessary that the Constitutional Court cited YUCOM’s lawyers demanded that the ssible harmful effects produced by eviction arguable provisions declare Constitutional Court takes the initiative decision, which can in extreme cases lead unconstitutional, because they and makes a decision for initiation of the to the homelessness of aggrieved party. In regulate the procedure in which the rights and interests procedure for the assessment of the legality such legal situations regarding the violati- of persons in the state of social of the challenged provisions of Article 25 on of the right to judicial protection right emergency, who are deprived from the right to legal aid, and paragraph 4 and article 28, paragraph 3, to social security, which is guaranteed by bearing in mind that in the Re- and orders the City of Belgrade to suspend Article 69 of the Constitution of RS,41 is public of Serbia, there is still no law on legal aid which embodies the execution of individual acts and acti- indirectly being violated. Arbitrary aboli- a constitutional right to legal ons taken on the basis of impugned Deci- tion of the right to judicial protection, not assistance guaranteed by Article sion on conditions and manner of disposal only undermines confidence in possibility 67 of the Constitution. Therefore, especially for persons in social of apartments built according to project of of exercising and protection of rights, but need, which typically do not have 1,100 apartments in Belgrade and issues purpose of application of these incentive the funds for professional legal advice, it is necessary that the the decision stating that the challenged measures is undermined. In order to ac- regulations explicitly stipulate provisions are not in accordance with the hieve the principles of legal security and the right to judicial protection. Prescribing the right to judicial Constitution. YUCOM points out that it the rule of law, as well as reaching the protection that is certainly is particularly alarming that the purpose standards of a democratic society, it is ne- guaranteed by the Constitution, of the adoption of such regulation (Deci- cessary to enable the efficient and complete it will be apparent obligation for second instance authority to sion) is to provide help for socially vulne- procedure for the exercise and protection highlight the instruction on legal rable citizens, and it is necessary to enable of rights, which includes a constitutional remedy in it’s decision, which is necessary for the exercise and them lawful procedure for exercising these right to judicial protection. protection of rights. Also, there rights, which includes the right to judicial Response by the City Secretariat for is still no uniform jurisprudence of the Administrative Court to protection. Social Welfare and the Constitutional unconditionally offer legal prote- Judicial protection in similar legal si- Court decision are expected in a short ction by applying directly Art. 198 tuations, would allow elimination of po- time. Para. 2 of the Constitution and to proceed with an administrative dispute on the basis on the filed lawsuits, when a complaint at the disputes arising from the factual situation to which the Decision on the conditions and method of disposal of flats built under a project to build 1,100 apartments in Belgrade applies, is filed.
YUCOM 2013 / Annual Report / No 1- 43 A 4 Anti-discrimination mechanisms in practice: the way to equal opportunities for adequate housing RECOMMENDATIONS
Based on the analysis of regulations and review the situation in Serbia when it comes to the right to adequate housing of vulnerable groups, it can be seen that there are significant inconsistencies in the implementation of the legal and strategic framework, as well as space for Improving regulations and amending regulations.
• For easier monitoring and planning poli- cies it is necessary to uniformly regulate the concept of social housing in protected con- ditions (SHPC) at the state level, while re- taining the provisions of the Law on Social Protection so the local government in the providing of social services may set higher standards and better conditions. • It is necessary to agree on the unconstituti- onal provisions in the general laws of local authorities in relation to the requirements for eligibility for social housing, and the ri- ght to legal protection in the process of rea- lization of housing rights and ensure equal enjoyment of rights from social housing to all citizens living in Serbia. • It is necessary to strengthen the capacity of organizations representing the interests of Roma, refugees, internally displaced per- sons and returnees under the readmission agreement in the field of housing and social protection, for better informing the vulne- rable citizens about their rights and res- ponsibilities and for more committed and more professional representation of their interests before public authorities. • It is necessary to strengthen the platform (to form a coalition) of organizations that monitor the situation in the field of reali- zation of the right to adequate housing and social protection rights in relation to these rights and coordinated support to margi- nalized groups in this area.
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• It is necessary to ensure greater transparency in the implementation of regulations in relation to social ho- using and social housing in protected conditions, and clearly precise and defer these concepts, their purpose and target groups, in order to adequately monitor the achievements of these services and the application of established policies . • It is essential that public authorities act and imple- ment the regulations in accordance with the Con- stitution and international human rights standards which stipulate the obligation of protection against discrimination in all areas, and not only to refrain from any form of direct and indirect discrimination in the implementation of regulations in the field of housing but to respond to all acts of discrimination noticed in their work • The Government should, as soon as possible, adopt a bylaw on the criteria and standards for the use of social housing, in order to provide a unique methodo- logy and create conditions for the allocation of social housing for the whole country, in order to ensure equ- ality of citizens in rights in this area • In creating conditions and criteria for the allocati- on of apartments for renting or use of Social Hou- sing in Protected Conditions it is necessary to avoid to set criteria that may exclude entire categories of citizens. It is necessary to also provide a simplified obtaining status of possible user of social housing, be- aring in mind the problems with obtaining personal documents, which are a prerequisite for obtaining the status of the user. In this way, equal enforcement wo- uld be ensured and indirect, systemic discrimination against marginalized groups would be prevented
YUCOM 2013 / Annual Report / No 1- 45 Y1 Broj 1, Decembar 2013. YUCOM 2013 izveštaj o radu 5 Y Lawyers Committee for Human Rights YU- COM: promoti- on, prote- ction and improve- ment of human ri- ghts in the year 2013.
46 - YUCOM 2013 / Annual Report / No 1 Y 5 Lawyers’ Committee for Human Rights – YUCOM: promotion, protection and improvement of human rights in 2013
THE MOST IMPORTANT PROJECTS IN 2013.
the exercise of the right to adequate non-governmental organizations, and The right to housing. the local media, YUCOM tried to Through the Legal Aid Program, determine the situation regarding the adequate YUCOM assumed representation of exercise of the right to adequate hou- several cases of violations of the right to sing and the right to social protection, housing for adequate housing. We found that certa- which are closely connected through in by-laws were found unconstitutional the law. The survey results are a special vulnerable and that the concept of social housing topic of this report. was unevenly implemented. In addi- In order to improve the situation of tion to the analysis of regulations and Roma, refugees, internally displaced requesting public information on the Name of Project: persons and returnees under the read- offering of social security services ai- Anti-discrimination mechanisms in mission agreements, and other people med at raising the standard of living of practice to the equal enjoyment of the who are in need, YUCOM has con- vulnerable groups, YUCOM obtained right to adequate housing ducted research on exercise of their additional information through several Duration: right to adequate housing. The focus focus groups. Through open discussi- October 2013. - December 2013. of this research is the implementation on with members of the most socially Donor: of affirmative measures that have been vulnerable groups, representatives of Embassy of the Federal Republic of introduced to achieve full equality in the relevant local authorities, relevant Germany
YUCOM 2013 / Annual Report / No 1- 47 Y 5 Lawyers’ Committee for Human Rights – YUCOM: promotion, protection and improvement of human rights in 2013
Strategic advocacy and protection of human rights defenders
Continuous provision of free legal aid to the media and non-governmental orga- vulnerable groups, as well as human ri- nizations in reporting on human rights ghts defenders, YUCOM has for many and opportunities for better understan- years been contributing to greater effi- ding and cooperation. There was dis- ciency mechanisms that guarantee the cussion regarding legal aid and some realization of human rights, easier acce- of the strategic cases that YUCOM led ss to justice, and the realization of the and provided representation for, which rule of law. Advocating and facilitating have the capacity to achieve far-reac- access to legal information and advices hing effects in correcting the system of to a large number of individuals are the protection of human rights and free- main activities YUCOM’s program of doms. free legal aid. In this way, citizens are provided with adequate legal assistance, regardless of their economic or other Name of Project: status on the basis of which they could Strategic litigation in cases of violati- be denied adequate legal advice. ons of human rights and the protecti- The problems in the legal system on of human rights defenders of Serbia detected through conducting Duration: strategic cases will be summarized in April 2013. - December 2013. the final conference, as well as statistics Donor: regarding the free legal assistance pro- Civil Rights Defenders vided and a review of strategic cases, which are a special part of this report. YUCOM organized the conference “Challenges strategic advocacy and re- porting on human rights” # MEDIA # NGO on which challenges are faced by
48 - YUCOM 2013 / Annual Report / No 1 Y 5 Lawyers’ Committee for Human Rights – YUCOM: promotion, protection and improvement of human rights in 2013
Changing the Inspired by the idea that citizens sho- Constitution and confirmed the readi- uld be brought closer to issues con- ness of these efforts and that they enjoy constitution cerning the constitution, and the very strong support. possibility of constitutional reform , This project is a continuation of online and of- YUCOM implemented a project called YUCOM’s engagement in the analysis Changing the Constitution online and of- of the highest legal and political acts in fline fline between February and December Serbia and efforts to overcome all defi- 2013. The growing importance of new ciencies, in order to create the precon- technologies as instruments of demo- ditions for a permanent, legitimate, and cratization has been used to encourage legal constitutional foundation. During broad public debategiven that the lack the project a Platform and the five pri- of public debate during the adoption of orities of the civil society to change the the current Constitution is considered Constitution was created, which made the main reason for its lack of legitima- statements that include expert analysis cy. Public forums that brought together of the shortcomings of the existing con- representatives from academia, civil stitutional framework and proposals for society, the judiciary, and the media reform. were held in Belgrade, Novi Sad, and Leskovac. The portal mojustav.rs com- piles reports of the debates held, expert Name of Project: commentary on constitutional provi- Changing the Constitution online and sions, decisions of the Constitutional offline Court, media articles, authored articles Duration: and publications, as well as all previous February 2013. - December 2013. Constitutions of the Republic of Ser- Donor: bia, which allows the public to access National Endowment for Democracy all of these documents in one place. In (NED) a series of consultations with civil so- ciety representatives, we collaboratively defined the priorities in amending the
YUCOM 2013 / Annual Report / No 1- 49 Y 5 Komitet pravnika za ljudska prava YUCOM: promocija, zaštita i unapređenje ljudskih prava u godini 2013
KORAK-HAPI- STEP is a coalition formed to improve the human rights situation in Serbia, Montenegro, and Kosovo in the following areas: LGBT rights, strengthening the role of women in political and public life, and judicial monito- ring of discrimination. It also aims to involve and network as many regional NGOs and activists who share the values of the Coalition as possible. The goal of STEP is to provide support to civil society organizations in resolving common challenges in the field of human rights. Special attention was paid to the rights of LGBT people, women’s participation in political life and trial monitoring for discrimination. Discrimination against the mentioned groups is common in the Western Balkans, so regional cooperation is suitable for dealing with these challenges. Civil society organizations, human rights defen- ders, representatives of marginalized groups, representatives of the judiciary and government, and the media are invited to support our ideas and to become associate members of STEP. The Coalition Step has, to date, held presentations in 22 cities (12 in Serbia, 5 in Montenegro, and 5 in Kosovo), where local non-governmental organizations were familiari- zed with the work and ideas of STEP and invited to coope- rate. In addition, the Coalition has organized a series of two- day seminars with the topic Equality - regulation and reality in Serbia in 6 cities in Serbia and three each in Montenegro and Kosovo. The aim of the seminar was to promote toleran- ce, equality and combating discrimination, and is intended for activists and human rights defenders. Judicial monitoring is an aspect of the work in which partner organizations from Serbia, Montenegro, and Kosovo monitored 45 court pro- ceedings for discrimination, after which it published analy- ses of all the monitored cases and and comparative analysis of practices, and using this developed a strategic document. A regional “Judicial Monitoring Network” was formed in September 2013 in Belgrade with the strategic document guiding its actions. Three call centres were established, so that citizens of Serbia, Montenegro, and Kosovo can report discrimination, whether they themselves are victims or have Koalicija za witnessed any discriminatory treatment, and will be provi- ded with legal assistance or given specific instructions on ravnopravnost further action. The Coalition published a brochure calledEquality - KORAK regulations and reality, which provides all interested parties with easier access to the very notion of discrimination, the Koalicioni për state of LGBT rights in Serbia, women’s participation in po- litical life, and judicial monitoring of discrimination trials. Barazi HAPI The brochure was published in Serbian, Albanian, and Mon- tenegrin, and all three versions have also been translated into Coalition for English and published. More information about the acitives of the Coalition Equality STEP STEP can be accessed on the website www.korak-hapi-step.eu.
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Name of Project: Networking of civil society in the Triple A for citizens - protection of threatened human rights in Serbia, Montenegro and Kosovo. information, advice, Duration: October 2012. - October of 2014. active assistance Project manager: the Lawyers Commi- ttee for Human Rights - YUCOM Nine organizations from the EU and on Free Legal Aid.A YUCOM is involved Partners: the Western Balkan countries joined in monitoring the work of the working Belgrade Centre for Human Rights, together, tasked with expanding the group for drafting the Law, and provi- the Network of Committees for Hu- concept of providing people in the We- des technical support daily. man Rights CHRIS and Gay Straight stern Balkans and Turkey with counse- Also assigned to the subgrant were Alliance in Serbia, Center for Civic lling. Counselling citizens is important two Serbian organizations: the Network Education and LGBT Forum Progress for several reasons: to provide direct of Committees for Human Rights and in Montenegro, Humanitarian Law assistance to the individual in the form UG Together. Through a study vi- Center Kosovo and Youth Initiative of information, advice, and active assi- sit to Romania, the UK, and Ireland, for Human Rights Kosovo stance, as well as being an important so- and twinning arrangements with an Donor: urce of knowledge about the real needs organization from England, these two European Union Delegation to the and problems of society, so that these organizations and YUCOM will have Republic of Serbia. services can be used to influence gover- the opportunity to gain insight into the nment policy. experiences of the oldest organizations Our initial task was to establish in providing legal aid in England and to how Serbia, Kosovo, Croatia, Bosnia incorporate them in their counselling. and Herzegovina, and Turkey are doing today in regards to counselling people: whether are there any conditions for Name of Project: their establishment, what types of co- Triple A for Citizens - information, unselling are offered, where, and which advice, active assistance (Triple A for kinds exist. In Serbia, these questions Citizens: Access to Information, Advi- were answered through an analysis of ce & Help Active) the existing regulations, while the real Duration: situation was evaluated on the basis of January 2012. - December of 2014. questionnaires and consultations with Donor: all local governments in Serbia, more European Commission than 50 NGOs, relevant ministries, law Partners: European Citizen Acti- clinics, unions and others. YUCOM on Service (ECAS) - Belgium, the published the National Report for Ser- National Foundation for Civil Society bia on the basis of which a working gro- Development - Croatia, Association up of the Ministry of Justice and Public for Democratic Initiatives – Bo- Administration waas established, which snia and Herzegovina, Kosovo Civil put forth proposals for the creation of Rights Program, Law Centres Fe- an efficient system of legal aid. deration (LCF) - United Kingdom, This report, along with examples of the National Association of Citizens good practice from the UK and Belgi- Advice Bureaux - Romania, National um, were presented at a two-day nati- Association of Citizens Information onal conference at HotelMoscow on Services - Ireland, Association of Civil 12th and 13th September 2013. Society Development Centre - Turkey, Thanks to the clear indicators of YUCOM – Serbia. the state of legal aid in Serbia, which is shown in this report, non-governmen- tal organizations, as the de facto provi- ders of legal aid in the past 20 years, are recognized as such in the draft Law
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Hate crime
At the end of December 2012, on of YUCOM, and Mirjana Bogdanovic, the initiative of YUCOM and the Gay executive director of the GSA. The con- Straight Alliance - GSA, the National ference was attended by representatives Assembly of the Republic of Serbia of government institutions, represen- adopted the Law on Modification and tatives of national minority councils, Additions to the Criminal Code of the organizations dealing with the rights of Republic of Serbia, which introduced minority groups, as well as representati- Article 54a, which consolidates hate ves of international organizations. The- crimes based on race, religion, national se activities were carried out in order or ethnic origin, gender, sexual orienta- to strengthen the capacity of all actors tion and gender identity as an aggrava- that are relevant in the application of ting circumstance during sentencing. . the law on hate crimes. After that, YUCOM and the GSA laun- ched the project Hate crime in criminal legislation – an efficient way for the pre- Name of Project: vention and reduction of violence , whi- Hate crime in criminal legislation – an ch is aimed at introducing citizens and efficient way for the prevention and experts with what constitutes a hate cri- reduction of violence me, and how to acheive the most effe- Duration: ctive application of Article 54a of the January 2013. - April 2013. Criminal Code. Presentations and de- Donor: bates about hate crimes were organized Ministry of Foreign Affairs of the in Subotica, Novi Pazar, and Krusevac , United Kingdom of Great Britain and which wer attended by representatives Northern Ireland. of the judiciary and civil society orga- Partners: nizations. A brochure for citizens was YUCOM and the Gay Straight Allian- issued about the concept of hate crimes ce – GSA and practices of neighboring countries and EU member states. During the fi- nal conference held in Belgrade, those present included Gordana Stamenić, State Secretary at the Ministry of Ju- stice and Public Administration, David McFarlan, deputy British Ambassador in Belgrade, Aleksandar Vasilijević , a representative of the Ministry of Inter- nal Affairs, Milan Antonijevic, director
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National Assembly for a vote. The pro- Name of Project: From brea- ject involves the active participation of From breaking to making the law 4,000 prisoners in 13 prisons in Serbia. Duration: king to ma- The aim is to enable prisoners in Serbia April 2013. - March of 2014. to affect change through theater. For Partners: king the law the first time in our country, ex-con- Centre for Theatre Research-ApsArt, victs (our associates) are returned to Belgrade Centre for Human Rights Three organizations from Serbia prison to coach development programs and Lawyers Committee for Human gathered in a joint project called From and help their former prison colleagues Rights - YUCOM breaking to making the law in the corre- affect positive changes for themselves Donor: ctional system of Serbia which combines and others. The Foundation for an Open Society their professional knowledge and skills Based on interviews and experien- Donator: to provide analysis of the law, promo- ces conducted and gathered during two Fondacija za otvoreno društvo ting and lobbying for the realization of info sessions in the Correctional Prison human rights, and the so-called Theatre in Sremska Mitrovica and the District of the Oppressed. This is a project who- Prison in Novi Sad, which were atten- se mission is to enable prisoners in jails ded by 400 convicts, workshops were in Serbia to influence the improvement held with former prisoners who were of the conditions of their sentence in the role of actors. During the per- through theatre—In order to achieve a formance the project team will select better and more complete re-socializati- the 10 most important proposals and on. It is one of the very few projects of amendments, and then will organize so-called legislative theatre in the wor- voting through a questionnaire that ld, covering one whole section of the will be sent to all interested prisoners population (in our case - thousands of in several prisons. Experts will also be prisoners in Serbian prisons), and the consulted on the questionnaire. The first legislative theater in the world whi- questionnaire will narrow the number ch includes so many large population of of proposals and changes from 10 to 3. prisoners. The project partners have vi- The Ombudsman shall submit to the sited all the major prisons in Serbia and National Assembly’s consideration of listened to the experiences of many pri- three voted for the proposal. soners with the aim to formulate draft amendments to the Law on the Execu- tion of Criminal Sanctions, which will be proposed by the Ombudsman to the
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Access to ju- stice - justice for all
The unfavourable socio-economic situ- ok Justice for all - How to get free legal nizations, such as YUCOM have rich ation in the country has resulted in the aid in Serbia - handbook for the citizens experience in providing free legal aid. inability of citizens to pay for lawyers were distributed. Access to justice and and thus the failure of securing rights free legal aid in Serbia - Challenges and Name of Project: for a large number of citizens of Serbia. Reforms provides an analysis of the legal Access to justice - justice for all Free legal aid is a way for them to achie- framework of legal aid in our country, Duration: ve their rights, but due to problematic the results of the research, and recom- November 2012. - March 2013. constitutional provision, a lack of ini- mendations for further development of Donor: tiative, and the unevenness of practice the free legal aid system. The Handbook USAID and the Institute for Sustaina- of local governments and the relevant for citizens provides insight into the gu- ble Communities laws have made the current system idelines on the manner and procedure Partners: ineffective. YUCOM, in cooperation for achieving the right to legal aid, as Lawyers Committee for Human Rights with SECONS, and with the support well as a list of all non-governmental - YUCOM and SECONS - Group for of USAID and the Institute for Su- organizations which citizens can turn Development Initiative stainable Communities, in the period to. Video clips on free legal aid pro- between November 2012 and March vided by YUCOM and strategic cases 2013, implemented the project Access concerning the protection of the right to Justice - Justice for all, with the aim to freedom of assembly and freedom of lobbying for a new law on legal aid. of expression before the Constitutional Based on the results of a survey Court of Serbia and the Human Rights conducted among 1,200 people in 25 Committee of the United Nations were cities in Serbia and after holding public also published. hearings, as well as training to providers The above activities are focused on of free legal aid, the publication Acce- the promotion of the free legal aid and ss to justice and free legal aid in Serbia recognition of the role of NGOs in this - challenges and reforms and handbo- system. Many non-governmental orga-
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The Lawyers’ Committee for Human One of the most important results Rights - YUCOM, through its long pra- of our efforts is that we present to the ctice of providing legal assistance, as well public a different, professional backgro- as through the other aspects of the pro- und to create a legitimate position on motion of human rights in Serbia, came accountability of the judiciary, from the to realize the negative implications of one that is often present in the sensa- corrupt conduct in the exercise of fun- tionalist, populist, and politically mo- damental rights and the rule of law and tivated descriptions in the mainstream democracy in society. The right to a fair media. Furthermore, we consider major trial is often compromised in complex contributors to motivate those who are cases of corruption, where the epilogue, responsible for the detection, prosecu- as a rule, obtained after a few years be- tion, trial and punishment for corrup- cause the authorities have not reached a tion, and remind them that they have high level of efficacy in the treatment or strong allies in civil society in the fight remained immune to corruption. against corruption. Through close observation of the An interactive website (antikorup- work of the judiciary, encouraging clo- cija.yucom.org.rs) was launched as part ser communication and coordination of the project, where interested public of actions of all subjects involved in en- can follow announcements of trials and ding corruption, we have seen that the- daily reports from corruption trials. As re is a space in which civil society can be a result of activities a study (publica- Corruption a partner in and serve as a corrective to tion) was designed called For efficient justice and the broader national mecha- judiciary against corruption, which was Trial nisms to ending corruption. Through presented at a conference at the Judicial devising guidelines for the monitoring Academy, in January 2013. Monitoring of trials and hearings in over 30 cases of criminal acts with elements of corrup- tion Serbian courts and researching the Name of Project: obstacles and preconditions for the full Support to adequate response Serbian contribution of all actors in the crimi- judiciary through monitoring the trial nal process, we influence the achieve- for corruption ment of a significantly higher quality of Duration: work in the field of corruption suppre- January 2012. - January 2013. (activi- ssion. We identified systemic barriers ties continued in 2013.) to the full exercise of justice after mee- Donor: tings and discussions with those who Partnership for Transparency Fund; are responsible for the protection of the the Foundation for an Open Society public good and the interests of corrupt Serbia behavior (judges, prosecutors, police Partners: officers, representatives of independent Lawyers Committee for Human Rights regulatory bodies). - YUCOM and CHRIS Network
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In cooperation with professional asso- way in which objects seduce and keep ciations of public prosecutors, YU- in prosecution. For the analysis we used COM supports the establishment of an a questionnaire that included questions accountable justice system (especially relating to the offender, the victims, as a the public prosecutor’s office) that has criminal offense, criminal proceedings the capacity and skills to apply natio- and sanctions. nal legislation in the field of criminal The analysis will be presented as a law protection of human rights and basis for discussion at the roundtable international standards in this area. By discussions with prosecutors, judges, raising awareness of the public prosecu- police officers and civil society, after Criminal law tors of the need for criminal protection which conclusions will be formulated of human rights, analysis of public pro- with recommendations for more effe- protection of secutions in the area, and the definition ctive criminal procedures for the pro- of recommendations for improving the tection of human rights where human human rights treatment of public prosecutors in cases rights of the victim and the defendant that violate human rights, the partners are respected. aim to contribute to the strengthening Part of our activities include advo- of the judiciary, which will be able cacy for strengthening the capacity of to ensure the rule of law and provide the Judicial Academy (human, mate- adequate protection to citizens. rial and financial) in order to be able Research about the treatment of to prepare and implement annual plans public prosecutors and deputy public of continuous training for judges and prosecutors in cases that violate human prosecutors who will suit the real needs rights, analysis of the role of prosecu- of the judiciary. tors in the protection of human rights began monitoring visits to primary and senior public prosecutors in four Name of Project: cities in Serbia (Belgrade, Novi Pazar, Partnership for the Protection of Hu- Vranje, and Sombor ), the most cases man Rights: effective judicial coopera- of human rights violations that entail tion with civil society criminal responsibility of the perpetra- Duration: tors were recorded in the last five years April 2013. - April 2014. and in which the public prosecutor’s Donor: office responded. Fieldwork included The Foundation for an Open Society interviews with prosecutors and deputy Serbia public prosecutors, access to comple- Partners: te documentation of selected objects Association of Public Prosecutors of (with respect to the protection of per- Serbia and the Lawyers Committee for sonal data), as well as insight into the Human Rights – YUCOM
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Open Parliament
Project Open Parliament implemented and to improve communication be- Name of Project: initiatives of civil society organizations tween citizens and their representatives. Open Parliament that make up the coalition Open Par- By street action and through direct Duration: liament. communication, we inform citizens March 2012. - February 2013. , July The main objective is to increase about how they can demand responsi- 2013. - July of 2014. the transparency of Parliament, infor- ble behavior from their representatives Donor: ming the public about its work and the in parliament. USAID through the Institute for Su- establishment of regular communica- Representatives of the coalition stainable Communities (ISC), the Bri- tion between citizens and their elected Open Parliament attended a large num- tish embassy in Belgrade and National representatives. This is based on the ber of public hearings and other events, Endowment for Democracy (NED) values contained in the International and thus participated in the National Partners: Declaration on opening parliament, in Assembly. The coalition also organized CRTA - Center for Research, Transpa- which the preparation was involved in a series of events in order to establish rency and Accountability, the Nati- Open Parliament. and strengthen cooperation between onal Coalition for Decentralization, MP’s in the National Assembly re- parliament and civil society organiza- Lawyers Committee for Human Rights presenting the interests of citizens. In tions and the National Assembly more - YUCOM , SECONS - Group for the framework of the Open Parliament transparent and closer to the citizens. Development Initiative there was created a tool for monitoring One such event was the Forum - the ci- the work of MPs - www.otvoreniparla- tizens, the media and Parliament, which ment.rs which are regularly published was held on 5th December 2013 in the transcripts of parliamentary sessions, National Assembly. different analyzes of laws and amend- ments, as well as recommendations to improve the transparency of Parliament
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Seven organizations from the Republic research with young people aged 18-35 The position of Serbia and the Republic of Croatia years who belong to the so-called second –have joined together with the task of generation of immigrants. There were of refugees mapping the reasons why citizens of Ser- three focus group discussions with the bian nationality, who became refugees 10-14 participants who find a deeper from Republic during the 1991-1995 war, were not re- insight into the problems that this gene- turned to Croatia, regardless of whether ration faces. In this phase the focus was of Croatia they still have refugee status or not. Spe- on the perception of their lives in Serbia, cial attention was paid to the question as well as their possible return to Croa- of whether the return and integration in tia. The data presented are an important general was enabled, and if not, what the complement to already conducted sur- obstacles were that prevented the return. vey research in order to discover the dee- Our initial task was to conduct re- per reasons for the different orientations, search on return and the reasons why attitudes and factors that underlie the citizens of Serbian nationality were not decision recognized, perceived barriers returned to Croatia. In order to fulfill and experience . this task YUCOM conducted research YUCOM is working together with and organized three focus groups. the Center for Peace Studies published The research consisted of two parts, a study on The situation of refugees in the qualitative and quantitative. This com- Republic of Croatia, which was presented bination of methods has contributed to in Belgrade and Zagreb. a better understanding of the issue of the return of refugees to the Republic of Name of Project: Croatia. The quantitative survey was fo- Highlighting human rights in areas of cused on the socio-demographic chara- special state concern cteristics, possession of documents from Duration: the country of origin, the issue of the January 2012. - July 2013. return, and legal issues. It is anticipated Partners: this will grant us insight into the impor- Centre for Peace Studies (CPS) - Za- tant aspects related to return, to determi- greb, Center for Support and Develop- ne the proportion of different attitudes ment of Civil Society Delfin - Pakrac, and perceptions of obstacles and reasons the Human Rights Committee - Kar- for return. This research was conducted lovac, Generator - Korenica, Human on a sample of 321 refugee people of all Rights House – Zagreb, Society for age groups, but with the increased focus the restoration and revitalization of on persons under the age of 30, which, the Tower of Stojan Jankovic - Bridges as a young population, could be most - Zagreb / Islam Greek, Lawyers Com- successfully integrated into Croatian so- mittee for Human rights - YUCOM ciety, if they would be given the oppor- - Belgrade, Group for Development tunity to return. Initiative - SECONS - Belgrade In addition to this part of the rese- Donor: arch SECONS - Group for Develop- Central Agency for Financing and ment Initiative conducted qualitative Contracting of Zagreb
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Anti-discrimination mechanisms in practice
YUCOM conducted research on whether, to what extent, and how the mechanisms for protection against discrimina- tion are used in court proceedings, in order to improve the procedural position of victims of discrimination, especially those belonging to one of four specially designated target groups (refugees, internally displaced persons, returnees under the readmission agreements, and Roma). Since the Anti-Discrimination Law is later date, we felt it was impor- tant to test the application of these mechanisms in the court proceedings, the ways in which the obligations undertaken by the ratification of international documents interpret, etc. YUCOM supports members of the aforementioned groups through advice, submissions and court advocacy support, especially in cases of discrimination. The survey covered the work of the civil departments of all basic courts in Serbia, and the results we obtained were systematized and analyzed qualitatively and statistically. The collected information allowed us insight into the total num- ber of legal proceedings that have been initiated to protect against discrimination since the law took effect, the outcome of these proceedings, respect the specificities of procedural rules in litigation to protect against discrimination, the use of international instruments by all subjects in the process etc. Finally, these data, together with the conclusions and recommendations derived based on the research results, bro- ught together in a publication - Anti-discrimination mecha- nisms in practice. This publication is presented on a two-day seminar Co- urt civil legal protection against discrimination, which was held in Vrdnik 5th and 6th December 2013. The seminar, for judges in the civil departments of basic courts, was orga- nized by the Judicial Academy RS and the OSCE.
Name of Project: Strategic litigation and monitoring the implementation of anti-discrimination mechanisms in practice, especially in the case of refugees, internally displaced persons, returnees under the readmission agreement and Roma. Duration: May 2012. - February 2013. Donor: Embassy of the Federal Republic of Germany
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Extended stay in elemen- tary schools - development Free legal aid and support - the experien- Despite the fact that women and men in Serbia have guaranteed equal rights, ce of other co- women are exposed to direct, indirect, and systemic discrimination. This espe- untries From law to cially applies in the economic sphere, where women often have greater The right to free legal aid is a funda- justice responsibilities in the private sphere mental right in a democratic society. and in unpaid care labour involving It allows all citizens equal access to The judicial system in Serbia is going domestic work and childcare. In late justice. Although provided by the through another reform. One issue 2013, YUCOM launched a project on Constitution, the Law on Free Legal that remains unresolved concerns the the development and promotion of the Aid has not yet been adopted, so access to justice by all social groups, concept of extended stay in elementary that there is no basis for the creation including minorities, socially exclu- schools. The project aims to develop of a system of free legal aid. Anot- ded, persons with language and other and promote the concept of daycare her important issue is the financial barriers, and other minority groups and in the elementary schools—extended sustainability of the free legal aid individuals. YUCOM, in late 2013, stay would harmonize the school day system. The Lawyers’ Committee for Started the project From law to justi- with the working day, which would Human Rights - YUCOM began in ce – sustainable free legal aid system indirectly allow a greater inclusion late 2013 an analysis of comparative in Serbia, which involves advocacy to of women in political and public life experiences that specifically deal with improve the free legal aid system throu- without discrimination,o improve the the financial sustainability of the free gh the involvement and networking of economic status of women, and pro- legal aid system in Slovenia, Croatia, civil society organizations, free legal aid mote gender equality and the breaking Montenegro, Lithuania, and the Brcko providers, legal experts, professors and of stereotypical gender roles. District in Bosnia and Herzegovina. students of law faculties, and all others This comparative analysis should offer interested. The project will aim at esta- Name of Project: various solutions and experiences that blishing a basis for assessing the degree Civil society for developing and will be used for the application of the of access to justice through the rule of promoting the concept of an extended best model for sustainable free legal aid law index). stay in elementary schools system in Serbia. Duration: Name of Project: December 2013 - February 2014. Name of Project: From law to justice - a sustainable free Donor: Legal aid - the experience of other legal aid system in Serbia Swedish International Development countries (score financial impact on Duration: Agency ( SIDA ) through the Interna- the legal regulation of legal aid) December 2013. - July 2014. tional Management Group - IMG and Duration: Donor: the Gender Equality Directorate of the November 2013. - December 2013. Institute for Sustainable Communities Ministry of employment, labour and Donor: – ISC social policy of the Republic of Serbia World Bank
60 - YUCOM 2013 / izveštaj o radu / Broj 1 A 5 Komitet pravnika za ljudska prava YUCOM: promocija, zaštita i unapređenje ljudskih prava u godini 2013 Other activities and contributions in 2013. Human Rights and Democra- cy House
Human Rights and Democracy House policies related to the protection and pro- Parade. The Human Rights and Demo- is a network of five civil society orga- motion of human rights, with particu- cracy House has also responded to the nizations from Belgrade. It was esta- lar emphasis on freedom of association, pressure on independent media and jo- blished in the November 2011 by the freedom of expression and the protection urnalists, as well as to raising tensions in The Centre for Civic Initiatives, the of persons dealing with the protection of Vojvodina during the past year. Belgrade Centre for Human Rights, the human rights; conducting research and The request for the establishment of Lawyers’ Committee for Human Rights writing reports on human rights - the an- the Ministry of Human Rights has been - YUCOM, Helsinki Committee for nual reports on the state of human rights denied, and the situation in this area Human Rights, and the Policy Centre. in the RS; empowerment and informal ne- is not improving. For this reason, the Human Rights and Democracy Ho- tworking organizations and initiatives of Human Rights and Democracy House use Belgrade is part of the international civil society organizations working on the again demanded that the Serbian go- Human Rights House Network, based promotion and protection of human rights vernment in the new Law on Ministries in Oslo and supported by the King- at the local, national and international le- consider the request of more than 100 dom of Norway. The City of Belgrade, vel; providing direct protection (legal and organizations, National Councils, and in support of the Human Rights and psychological) to victims of various human refugee associations from May 2012 to Democracy House, granted use of the rights violations. establish a Ministry of Human Rights. building located at Knez Milos no. 4. At During 2013, the Human Rights Part of theactivities of the Human Ri- this address, a number of activities are and Democracy House has issued a ghts and Democracy House is directed taking place, such as debates on current number of statements relating to cu- towards the monitoring the implemen- issues related to human rights, the pre- rrent issues such as: the drastic dete- tation of minority rights in Sandzak sentation of research and publications, rioration of the situation in the field municipalities and the municipalities of as well as a specialized library about de- of the protection of human rights and Presevo, Bujanovac and Medvedja. Hu- mocracy and human rights. the frequent threats to representatives man Rights and Democracy House in The Human Rights and Democracy of civil society organizations, to me- the past year organized public meetings House was set up to promote, develop, dia, to institutions and individuals who and educational activities such as tra- and improve the protection of human advocate for human rights and the rule ining future researchers of human rights rights in the Republic of Serbia thro- of law, and a violation of the right to and conflict resolution in the south Ser- ugh: the development, monitoring and freedom of assembly and the repeated bia and the Sandzak. advocacy of national and international failure to secure and support the Pride
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Participati- citizens: access to informations, advice YUCOM provided the Incest Trauma and active assistance, NGOs have pro- Center with technical assistance in the on in working ven to be de facto providers of free legal form of writing proposals for mentio- aid in the last 20 years and are recogni- ned changes to the Criminal Code and groups and zed as such in the new draft of the Law thereby contributed to the abolition of on Free Legal Aid. YUCOM provides limitation of sexual offenses by voting drafting laws daily support working group on impro- in the National Assembly of the Repu- ving the draft law. blic of Serbia. With this progress Serbia YUCOM participated in the develop- Since October 2013 YUCOM has has become, after the UK, the second ment of several draft laws through par- been a member of the working group country in Europe in which legislation ticipation in working groups and giving of the Ministry of Justice and the State recognizes the long-term effects of child comments on existing drafts. The most Administration for making up of the sexual trauma. important was the participation in the Law on Amendments and Supplements The Belgrade Open School - BOS working group for drafting the Law on to the Law on Courts and drafting and YUCOM have put together com- Free Legal Aid, which was formed in amendments to the Court Rules, which ments on the Draft Law on Amen- April 2013. The working group inclu- will be related to methods of harmoni- dments and Additions to the Law on ded YUCOM in regular monitoring of zation of judicial practice and necessary Environmental Protection, and sent its activities and allowed representatives changes to regulation which will result them to the Ministry of Energy, Deve- of YUCOM to constantly attend mee- in its standardization. lopment and the Environmental Prote- tings of the working group. Thanks to The Belgrade Incest Trauma Center ction in November 2013. YUCOM’s the clear indicators of the state of free has started the initiative for alteration and BOS’s comments were related to legal aid which YUCOM presented as of the Criminal Code in April 2013, by the right of access to environmental in- part of the research which was publi- adopting a provision of imprescriptibi- formation. shed in the publication Triple A for lity of sexual offenses against children.
tegy, the drafting of the Action Plan for the period from 2013 - 2018 was Comments on its implementation is in progress. YU- adopted on 1st July 2013 at the sitting COM has contributed through develop- of the National Assembly. The Strategy strategies and ment of specific measures and activities is guided by the principles of systemic related to the improvement of the status upgrades and strengthening institu- action plans of LGBT people. tions in the fight against corruption, The National Assembly of the Re- with respect democratic values, the rule The Government of the Republic of Ser- public of Serbia passed the National of law, and protection of fundamental bia on 27th June 2013 adopted a Stra- Judicial Reform Strategy for the period human rights and freedoms. The reali- tegy of prevention and protection against from 2013 – 2018 in July 2013. The zation of the objectives of the Strategy discrimination for the period from 2013 Strategy is a response to requests for is closely defined by the Action Plan to 2018 in order to provide a higher level the improvement of the justice system, that contains all the relevant informa- of respect for constitutional principles of and civil society had the opportuni- tion regarding the specific measures non-discrimination. The coordinator of ty to participate in the public hearing and actions needed to achieve strategic this strategy was the Office of Human and submit comments on the strategy objectives, timelines, responsible par- and Minority Rights, with civil society to improve its text. YUCOM organi- ties, and resources for implementation. organizations providing a large contri- zed a round table in April 2013 on the The public was involved in the drafting bution. YUCOM participated in the topic Increasing the quality of justice of the Action Plan through the possi- work of five of the nine thematic groups - Judicial Reform Strategy where some bility of commenting on its contents. and contributed to the formulation of issues were discussed and constructive YUCOM contributed by drawing priorities that are incorporated into the suggestions for improving the text gi- attention to the active participation of Strategy. These thematic groups are for ven. After that YUCOM sent five spe- civil society organizations in establis- improvement the position of women, cific comments that have proved to be hing efficient and effective protection LGBT people, ethnic minorities, reli- constructive and have entered into the of whistleblowers, which was adopted gious groups, and refugees, internally National Judicial Reform Strategy. in the Action Plan. The conclusion on displaced persons and other migrant The National Anti-Corruptionthe adoption of the Action Plan for groups. After the adoption of the Stra- Strategy in the Republic of Serbia for the Implementation of the National
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Anti-Corruption Strategy was finally Participation Practice for adopted on 25th August 2013 by the Government of the Republic of Serbia, in the Natio- students in at the proposal of the Ministry of Justi- ce and Public Administration. nal Mecha- YUCOM nism for the During the school year 2012/2013, students from the Legal Clinic for Dis- Prevention of crimination at the Faculty of Law, Uni- versity of Belgrade, were engaged in the Torture (NPM) provision of free legal aid to citizens, in various projects in the field of human Based on the Agreement on Coopera- rights, and in organizing and condu- tion with the Ombudsman, YUCOM cting workshops on discrimination for has been, since 2013, included invisits high school students. The most active to correctional institutions and district students were Vuk Raicević, Milan Ra- prisons in Serbia for monitoring the im- dić, Violeta Kurti, Dragan Tosić, Ne- plementation of the Law on Execution manja Sladaković,and Natasha Tadić. of Criminal Sanctions and compliance Also doing practice at YU- with international standards within the COM were students and young lawyers Cooperation detention facilities. from overseas: Jean -Baptiste Merlin During 2013, YUCOM joined (France), Zoran Vasić (Germany), with the Nati- the district prison visits in Kragujevac, Benjamin Viennet (France), and Tea Remand prison, and the Correctional Hadžiristić (Canada). onal Assembly Facility for Juveniles in Valjevo. Also, Currently, our actively engaged vo- YUCOM is involved in a constructive lunteers include Jovana Spremo, gra- of the Repu- dialogue between the National Mec- duate political scientist in international hanism for the Prevention of Torture affairs, currently doing her Master of blic of Serbia (NPM) and prison staff regarding the International Humanitarian and Hu- consideration of the recommendations man Rights Law at the Faculty of Po- In 2013 YUCOM had extensive co- that were sent after completion of the litical Science, Ana Janković, Degree in operation with the National Assembly monitoring. Law - Master of Human Rights Studies and in particular with the Committee Cooperation between NGOs and (LLM Human Rights ) at the Univer- for Human and Minority Rights and independent experts with the Ombud- sity of London, and Momčilo Zivadi- Gender Equality. We have initiated and sman on matters of the national preven- nović, graduate social worker, currently supported the organization of a public tive mechanism resulted in the creation completing his Master of Social Work hearing about the role of independent of a model that is considered positive at the Faculty of Political Science. institutions in promoting human rights by the Ombudsmen in the region. The and consideration of the need for impro- members of NPM in Serbia and Om- vement of the legal framework. By active budsmen from the region gathered in participation in public hearings and ot- Belgrade at for the purpose of creating Cooperation her activities of the parliament, YUCOM a Balkan regional NPM network at a initiated a meeting between the President first, founding meeting. with TehnoArt of the Committee for Human and Mi- nority Rights and Gender Equality and School representatives of the Office of the Om- budsman with the aim of completing the institutional framework for their cooperation. We compiled a document that will represent the basis for the deve- lopment of the Protocol on cooperation between the two bodies.
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Between April and June 2013, YU- Contribution COM organized five workshops on the fight against violence and discrimination to bilateral for high school students of engineering and artistic crafts at the TehnoArt school screening in Belgrade. The workshops were led by students from the Law Clinic for Discri- YUCOM, within the Human Rights mination of the Law Faculty, with sug- and Democracy House, contributed to gestions and guidance by the YUCOM the bilateral screening for Chapter 23 team. The students had undergone trai- of the accession negotiations with the ning and then did practical work with European Union. This section covers high school students, and high school the area of judiciary and fundamental students had the opportunity to partici- rights. pate in workshops led by young people The Office for Cooperation with not much older than them, with whom Civil Society, in cooperation with the they could openly discuss the problems Ministry of Justice and Public Admini- they face every day, related to discrimi- stration, invited civil society organiza- nation and violence. Through coopera- tions to participate in the preparation tion between the Law Clinics and the of the bilateral screening for Chapter TehnoArt high school,, YUCOM esta- 23. Screening is a preparatory phase blished a sustainable system of training that immediately precedes the accession both university students and high school negotiations with the European Union. students, given that students will train Screening consists of three parts. Bila- the next generation of their colleagues to teral represents the second part, during work with the next generation of high which it estimates the level of harmoni- school students. zation of the legal systems of the candi- It also held two trainings for teachers date countries to the EU acquis, deter- and administrative staff of TehnoArt, as mines areas that need adjustment, and well as meeting with parents. Continued proposes a time frame for completion cooperation is planned for the coming of the matching process in a given area. school year. It is particularly important On behalf of the Human Rights that this cooperation is initiated by the and Democracy House, YUCOM con- school administration and teachers, who tributed in two areas: indicated the need for such activities, 1. protection of victims in criminal and the recognition of civil society as an proceedings (YUCOM); important partner in solving these exis- 2. detention, conditions of deten- ting problems. tion and period of detention (prepared by the Belgrade Centre for Human Rights and the Human Rights and De- mocracy House). Bilateral screening takes place after the explanatory phase, which is the first part of the screening and during which the European Commission to the can- didate country presents the EU acquis in this specific chapter. YUCOM also participated in monitoring explanatory screening via video link from the Natio- nal Assembly for Chapter 23 (Judiciary and Fundamental Rights) and 24 (justi- ce and liberty and security).
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YUCOM PUBLISHING ACTIVITY IN THE 2013
From the very beginning (1997) YUCOM has developed publishing activities. Wwe pu- blish specialized studies and research in the field of human rights protection. In order to encourage work in the field of human ri- ghts protection and presentation of the results of their field, YUCOM makes it publicati- ons at no charge. During 2013 we issued 13 publications, which can be downloaded at www.yucom.org.rs/nova_izdanja.
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Anti-discrimination mechanisms in practice: This report promotes the improvement of the status of vul- nerable groups to enable them to fully enjoy all the rights gu- aranteed by the Anti-Discrimination Law, and thus support the establishment of effective anti-discrimination mechani- sms. The report presents the legal framework for the protecti- on from discrimination, the procedures in case of violation, the experience of countries in the region, and the practice of the courts and independent institutions. The report also contains the conclusions and recommendations of the court and possibilities of improvement of judicial practice when it comes to litigations for protection against discrimination.
Preliminary report on the di- sadvantages of the Constitution of the Republic of Serbia and propo- sals for reform: A preliminary report on the disadvantages of the 2006 Con- stitution of the Republic of Serbia was created as a result of work of the YUCOM’s team of lawyers and experts on the analysis of disadvantages of the existing constitutional text and constitutional practice. The report was created as the first of three reports that are provided within the project. It contains part of the analysis that the YUCOM team already published in 2011 in the publication of the Constitution at the crossroads - Report about constitutional practice, the deficiencies of the Constitution and the ways of its impro- vement, as well as analysis of the Constitution by the Venice Commission. The report also analyzed the results of research carried out by the carried Open Society Fund in 2012 on the attitudes of citizens and representatives of the elite on the need to amend the Constitution. This preliminary report also contains the results of the ongoing consultation process and of research work that YUCOM associates conducted in daily practice, providing assistance to citizens whose consti- tutional rights and freedoms are threatened.
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Justice for All - How to get free legal aid in Serbia - handbook for citizens: This handbook for citizens provides access to guidelines on the manner and procedure for approaching the right to legal aid. It contains a list of all non-governmental organizations which citizens can turn to and helps them to understand the difference between legal aid and free legal aid, and the ways of obtaining it, and also introduces them to YUCOM’s practice.
PRAVDA ZA SVE Kako do besplatne pravne pomoći u Srbiji? Priručnik za građane
Access to justice and free legal aid in Serbia - challenges and reforms: This publication was made based on the results of a sur- vey conducted among 1,200 people in 25 cities in Serbia, and following public hearings and trainings of providers of free legal aid. Contents include: an analysis of the legal fra- mework of free legal aid in the country, the results of the research, and recommendations for further development of the free legal aid system.
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Study about the situation of refu- gees from the Republic of Croatia: The study is a result of cooperation between Center for Pe- ace Studies - CPS Zagreb and YUCOM. The publication presents the results of quantitative and qualitative research. Quantitative research was conducted by YUCOM on sam- ple of about 350 refugees in order to identify significant issues surrounding their possible return to Croatia. Quali- tative research was conducted SeConS by organizing three focus group discussions. In this part of the research the focus was on the perception of the life of refugees in Serbia, as well as their possible return to Croatia. In addition, CPS has conducted qualitative research with returnees from Pakraca, Karlovac, and Korenice. Part of this publication are the re- commendations that will serve the mentioned organizations in advocating for the sustainable return andbetter living con- ditions of refugees.
Triple A for citizens - Access to information, Advice and Active assistance (National Report for Serbia): The study includes an analysis of the legal framework in the field of information, counseling citizens, and providing free legal aid. The report provides an overview of the obligati- on to provide information and advice about the established regulations of the Republic of Serbia. It also contains a list of legally recognized legal aid in proceedings before various state agencies and the courts. Shown is the present situation in the field of regulation of free legal aid, and comments are given on the draft Law on Free Legal Aid, which was crea- ted as part of the former composition of the working group in charge of the relevant ministry. Based on empirical data, comments are presented on the needs of citizens for different types of free legal aid which have been identified through years of YUCOM’s work and research
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For an efficient judiciary against corruption: YUCOM compiled this publication as a report within the anti-corruption activities in 2012. Through observation of the work of the judiciary, fostering closer communication with it, and coordination of actions of all entities involved in fighting against corruption, we have seen that civil so- ciety can be a partner in and corrective to justice and the broader national mechanisms to fight against corruption. After monitoring trials for corruption and holding meetings and discussions about these complex criminal cases, we have carried out key findings and identified systemic barriers to to the full realization of justice. YUCOM presented to the public the technical base for the creation of a legitimate po- sition on accountability of the judiciary, differentiated from the one that is often present in the sensationalist, popular, and politically motivated descriptions in the media. This report, intended for the civilian sector, deals with criminal cases, bodies, institutions, and organizations involved in the anti-corruption process, as well as an analysis of criminal regulation of corruption, the basis and the importance of ob- serving these trials, as well as guidelines for monitoring. Part of this publication includes the ideas of judges, prosecutors, lawyers, police representatives, independent regulatory bo- dies, and non-governmental organizations that participated in the YUCOM panel discussions and the observations that were recorded in those meetings.
Ombudsman - recommendations in practice: In this publication, apart from presenting the actual legi- slative framework which regulates the work of the Ombud- sman, the basic elements of the right to good administration created under the auspices of the Council of Europe were analyzed. It also presents a methodology for monitoring the implementation of the recommendations of the Ombud- sman, the criteria for evaluation of the implementation of recommendations, and the instruments for implementation. It also contains insights collected from semi-structured in- terviews with representatives of public administration which were sent to the selected recommendations of the Ombud- sman, as well as some conclusions and recommendations aimed at improving cooperation of the Ombudsman with the administration and improvement of the right to good administration.
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Hate crime - a brochure for citizens: This brochure was published in order to better inform the public about the new Article 54a of the Criminal Code, which makes the existence of hatred as the motivation for a crime an aggravating circumstance, which is taken in con- sideration during sentencing. It presents the nature of this regulation, comparative legislation, its implementation, and the reasons that might lead to hate crimes.
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Equality - regulation and reality: The brochure contains four parts. The first part deals with discrimination in general (the notion of discrimination, le- gal and institutional framework, the practice of the courts). The next part deals with the state of LGBT rights in Serbia, followed by one about the role of women in political and public life. The last part of the brochure deals with the met- hodology of monitoring trials for discrimination.
Equality - regulation and reality in Montenegro: This brochure also contains four parts. The first part deals with discrimination in general (the notion of discrimination, legal and institutional framework, the practice of the courts), followed by the state of LGBT rights in Montenegro the role of women in political and public life, and the last section provides guidance on the establishment and registration of non-governmental organizations in Montenegro. The broc- hure is in the Montenegrin language.
Equality - regulation and reality in Kosovo: The brochure contains three parts. The first part deals with discrimination in general (the notion of discrimination, le- gal and institutional framework, the practice of the courts), followed by the state of LGBT rights in Kosovo and the role of women in political and public life in Kosovo. The broc- hure is in the Albanian language.
Equality - regulations and reality in Serbia, Montenegro and Kosovo: This brochure is a compiled translation of all three broc- hures issued by the Coalition for Equality - Step. It includes a review of anti-discrimination norms, the status of women in political life, the state of LGBT rights, mechanisms for monitoring the trial for discrimination, and all others me- chanisms to adequately fight against corruption in Serbia, Montenegro and Kosovo. The brochure is in English.
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