COMMISSIONER FOR THE PROTECTION OF EQUALITY
2015 REGULAR ANNUAL REPORT
15 March2016
Belgrade
Translation:
Introduction and Summary:Institution of the Commissioner for the Protection of Equality
From About the Commissioner for the Protection of Equality to the end of 2015 Regular Annual Report, including the Table of Contents:
Biznis akademija LC
Direktor- Dragana Lilić
Niš, Dušanov Bazar, II floor, suite 209
Novi Sad, Bulevar Mihajla Pupina 6, VI floor
Tel: +38118 517773
Fax: +38118 517774
Cell: +381638757543
E-mail:
TABLE OF CONTENTS:
INTRODUCTION
SUMMARY
1.ABOUT THE COMMISSIONER FOR PROTECTION OF EQUALITY
1.1.Professional Service of the Commissioner
1.2.Institution’s 2016 – 2020 Development Strategy
2.THENORMATIVEFRAMEWORKFOR THE IMPLEMENTATION AND PROTECTION OF EQUALITY
2.1.Overview of the effective regulations
2.2.Normative changes in 2015
3.THE DESCRIPTION OF THE SITUATION REGARDING THE ACHIEVEMENT AND PROTECTION OF EQUALITY
3.1.The reports of the EU, international organisations and treaty bodies
3.1.1.The Case Law of the European Court of Human Rights
3.2.Reports and researces of domestic institutions and organisations
3.3.The practice of the Commissioner for Protection of Equality
3.4.Key problems in achieving equality and protection from discrimination
3.4.1.Discrimination on the groungds of gender
3.4.2.Discrimination on the grounds of national affiliation
3.4.3.Discrimination on the grounds of disability
3.4.4.Discrimination on the grounds of sexual orientation
3.4.5.Discrimination against refugees, internally displaced persons, asylum seekers and migrants
3.4.6.Discrimination on the grounds of age
4.actions of the commissioner for protection of Equality ON suppressing discrimination
4.1.DISCRIMINATION ON THE GROUNDS OF GENDER
4.1.1.Opinions and recommendations
4.1.2.Recommendations on measures for achieving equality
4.1.3.Warnings and announcements
4.2.DISCRIMINATION ON THE GROUNDS OF NATIONAL AFFLICTION AND ETHNIC ORIGIN
4.2.1.Opinions and recommendations
4.2.2.Recommendations on measures for achieving equality
4.2.3.Warnings and announcements
4.3.DISCRIMINATION ON THE GROUNDS OF DISABILITY
4.3.1.Opinions andrecommendations
4.3.2.Recommendations on measuresfor achieving equality
4.3.3.Announcements
4.4.DISCRIMINATION ON THE GROUNDS OF AGE
4.4.1.Opinions and recommendations
4.4.2.Recommendations on measures for achieving equality
4.4.3.Announcements
4.5.DISCRIMINATION ON THE GROUNDS OF SEXUAL ORIENTATION AND GENDER IDENTITY
4.5.1.Opinions and recommendations
4.5.2.Warnings and announcements
4.6.DISCRIMINATION AGAINST REFUGEES, INTERNALLY DISPLACED PERSONS, IMMIGRANTS AND ASYLUM SEEKERS
4.6.1.Opinions and recommendations
4.6.2.Warnings and statements
4.7.DISCRIMINATION ON THE GROUNDS OF MEDICAL CONDITION
4.7.1.Opinions and recommendations
4.7.2.Recommendations on measures for achieving equality
4.7.3.Annountcements
4.8.DISCRIMINATION ON THE GROUNDS OF OTHER PERSONAL PROPERTIES
4.8.1.Opinions and recommendations
4.8.2.Warnings and Annountcements
4.9.MULTIPLE DISCRIMINATION
4.9.1.Opinions and recommendations
4.9.2.Annountcements
4.10.Proposals for assessment of constitutionality
4.11.OPINIONS ON DRAFT LAWS AND OTHER GENERAL ACTS
4.12.COURT PROCEEDINGS
4.13.OUTCOMES OF THE PROCEEDINGS
5.cooperation of the commissioner
5.1.Cooperation with public authorities
5.1.1.Cooperation with the National Assembly of the Republic of Serbia
5.1.2.Cooperation with the representatives of executive authority
5.1.3.Cooperation with theunits of local-government
5.2.Сooperation with the civil society organisations
5.3.International cooperation
5.3.1.Cooperation with the OSCE Mission in Serbia
5.3.2.Cooperation with the EU Delegation
5.3.3.Cooperation with the United Nations Children`s Funds (UNICEF)
5.3.4.Cooperationwith the German Technical Cooperation Agenncy (GIZ)
5.3.5.Cooperation with the Council of Europe
5.4.Other forms of cooperation
5.4.1.Cooperation with the European Network of Equality Bodies ( Equinet )
5.4.2.Annual Conference of the Commissioner
5.4.3.National competition in the simulated court proceedings
5.4.4.Belgrade marathon –To the Finish Line on an Equal Footage
6.MEDIA REPORTING
7.DUTIES IN ACORDANCE TO THE LAW ON FREE ACCESS TO INFORMATION OF PUBLIC INTEREST
8.REPORT ON IMPLEMENTATION OF THE FINANCIAL PLAN
9.RECOMmENDATIONsFOR supressing DISCRIMINATION AND promoting EQUALITY
ANNEX: STATISTICAL OVERVIEW OF THE COMMISsIONER`S WORK in 2015
Namber of cases per years
Namber of cases in 2015
Complainants
Individuals
Other complainants
Grounds of discrimination - perconal characteristics
Grounds ofdiscrimination by number - one/more personal characteristics
Grounds ofdiscrimination -national affiliation
Grounds ofdiscrimination -age
Areas of social relations the complaints pertain to
Work and enployment
Conduct of public authorities
Public information and media
Provision services and/or use of public Facilities and spaces
Education and professional training
Against whom the complaints were filed
Number of complaints per regions
Outcomes of the procedures
Acting upon recommendations
Acting upon proceedings
All the terms used in this Report in masculine grammatical gender encompass both masculine and feminine gender of the person they refer to.
INTRODUCTion
EsteemedMembers of the National Assembly,
Dearreaders,
This is the sixth Regular Annual Report of the Commissioner for the Protection of Equality but at the same timeit is the first such report submitted by the new Commissioner for the Protection of Equality elected by the National Assembly on 27 May 2015 in her five year term of office.
The Commissioner for the Protection of Equality, an autonomous state body which is independent in performing its duties and obligations as defined by the Law on the Prohibition of Discrimination and specialized in the prevention of and protection from discrimination, performs its role in combating discrimination andstriving towards reaching full equality for all members of our society, as the respect for human rights constitutes a fundamental value and a cornerstoneof development for each and every country.
A steady rise in the number of filed complaints, our foremost instrument within our mandate, is encouraging as it demonstrates that an increasing number of citizens trust our institution. When compared to the previous year, the number of complaints has increased by almost 20 percent. This upward trend was particularly pronounced in the second half of 2015, which does not mean that our society was experiencing more instances of discrimination, but rather that, on the one hand, the institution itself has gained visibility and is working on suppressing discrimination more vigorously, while on the other hand it also means that discrimination is more easily detected and that an increasing number of citizens iswilling to seek protection.
Institution’s year in year out experience shows that the majority of complaints pertain to discrimination suffered in the process of employment or to workplace related discrimination. However, in terms of the groundsfor discrimination, unlike in previous years, the majority of complaints filed in 2015 cited personal characteristics such as gender and sex, while the issue of gender equality dominated the public discourse.One of the reasons for the spike in the number of complaints alleging gender based discrimination was the adoption of the new Law on the Method of Determining the MaximumNumber of Employees in the Public Sector, which has led to a large number of complaints filed by women and professional organizations. Due to discriminatory provisions of this piece of legislation, the Commissioner for the Protection of Equality and the Ombudsman have launched an initiative with the Constitutional Court of the Republic of Serbia to assess the conformity with the Constitution. The Constitutional Court found that the implementation of contentious provisions of the present law would lead to irreversible harmful consequences to persons concerned.With reference to the aforementioned, the Constitutional Court has suspended, until the final decision, the enforcement of individual official decisions which would be passed on the basis of the contentious provisions of this Law.
The grim reality shows that in the last year alone, 34 women were killed as a result of domestic violence in Serbia. The bleak statistics only highlighted the need for the line institutions and professionals to tackle this burning issue in our society by taking action and adopting urgent measures geared towards protecting human rights and promoting life without violence. Bearing this in mind the Commissioner for the Protection of Equality has called upon the competent authorities to harmonize the legislative framework with the already ratified Istanbul Convention and to introduce urgent measures aimed at protecting women victims of violence.
The wider context and the timeline when the Commissioner for the Protection of Equality entered a new phase of its operation and implementation of its law-prescribed mandate, coincided with the alarming influx of migrants fleeing Middle East and North Africa, which has led to an increase in the number of complaints related to the discrimination of migrants. The Commissioner was present in the field and in reception centers where it was possible to see all the difficulties these people faced and detect on the spot potential cases of discrimination against migrants during their stay in Serbia.
Certain laws which are fundamentally important for the protection and strengthening of equality in certain areas were adopted during 2015. Although effective regulations offer solid legal framework for the protection against discrimination, the need for their alignment with the EU standards still persists. With this in mind, the Commissioner for the Protection of Equality found that two documents were of paramount importance for its operation: firstly, Serbia EU Integration Annual Progress Report and secondly, European Commission’s Positive Opinion on the Action Plan for Chapter 23 in the process of accession negotiations. Serbia Progress Report states that further harmonization of the antidiscrimination legislative framework is necessary, namely with respect to the following: the scope of exemption from equal treatment principle, definition of indirect discrimination and employer’s obligation to make reasonable modifications and adjustments for their employees with special needs.European Commission’s Positive Opinion on the Action Plan for Chapter 23 in the process of accession negotiations found that all the hard work done by the Commissioner for the Protection of Equality has significantly contributed to awareness raising regarding discrimination but that further strengthening of this Institution’s capacities in the upcoming period is needed so as to enable the Commissioner to continue with its efforts towards promoting the protection against and prevention of discrimination.
During the second half of 2015 particular emphasis was given todealing with backlog of issues associated with financial and operational challenges, to those pertaining to implementing recommendations contained in the Report of the State Audit Institution as well as to finding new, more spacious office space as a precondition for Institution’s functioning. By the end of the year new office premises were assigned to the Commissioner for the Protection of Equality which are currently being refurbished by the Administration for Joint Services of the Republic Bodies and relocation of the institution is planned for mid-2016.
The drafting of 2016 – 2020 Institution Development Strategy is an important prerequisite for further improvement of Institution’s functioning and for a successful implementation of its vision and mission, since the Commissioner for the Protection of Equality is a key authority specialized in combatting all forms and shapes of discrimination. The vision of the Commissioner for the Protection of Equality sees Serbia as an open and tolerant society of equal people which offers equal opportunities to all of its citizens, while its mission is to eradicate all forms of discrimination and achieve full equality in all areas of social life. The evaluation of the first Institution Development Strategy was a good starting point for adopting the new strategy that will be made available to the public in April. Further efforts will continue towards strengthening institutional capacities, increasing institution’s visibility and accessibility, improving the methodology for monitoring the implementation of recommendations, as well as towards promoting cooperation with civil society organizations, media, trade unions and national council of national minorities.
In order to improve the public’s ability to detect discrimination as well as to strengthen institution’s visibility and increase its presence, we have forged a strong partnership with our chief allies, the media. This is the reason the Commissioner for the Protection of Equality established in 2015 in cooperation with OSCE Mission to Serbia,the Annual Media Award whose main objective is to help create a climate of zero tolerance for discrimination in our society.
By pursuing activities within its legal domain and by adopting a proactive approach, the Commissioner for the Protection of Equality has been exerting every effort to protect and reinforce principles of equality, equal opportunities and tolerance and has used every means within its powers to do so. Discrimination is a basic and most common violation of the equality principle hence pursing activities aimed at its elimination is of crucial importance for the development of a society and its each and every member.
The upcoming period is fraught with challenges which as a society we must strive to confront and overcome so as to have differences of every kind accepted. Having said this I would wish to share a quote by Hannah Arendt that would hopefully inspire everyone reading this Report to lead by example, thus helping Serbia become a more tolerant society:‘As citizens, we must prevent wrongdoing because the world in which we all live, wrong-doer, wrong sufferer and spectator, is at stake’. (Hannah Arendt)
The Commissioner for the Protection of Equality
BrankicaJanković
SUMMARY
In 2015 the Commissioner for the Protection of Equality, within its statutory powers, continued with its activities aimed at combating all types, forms and instances of discrimination and geared towards promoting equality. This sixth Regular Annual Report of the Commissioner for the Protection of Equality is at the same time the first such report submitted by the new Commissioner for the Protection of Equality, Brankica Janković,who was elected by the National Assembly on 27 May 2015 in her five year term of office. It should be noted that in 2015 adequate office space was provided for operational needs of the Commissioner for the Protection of Equality, while institution’s relocation is planned for mid-2016.
An upswing in the number of cases handled by the Commissioner for the Protection of Equality continued in 2015. In comparison to 884 cases in 2014, 2015 saw a total of 1040 finalized cases, which translates into a 20% increase. The overall visibility of the institution has also increased resulting in easier detection of discrimination and a larger number of individuals willing to seek protection against discrimination. The surge of complaints does not automatically mean that there were more instances of discrimination in our society, but rather that on the one hand, the institution was gaining visibility and was working more intensively towards eliminating discrimination in our country, while on the other hand, discrimination itself was becoming easier to detect and identify. In 2015 a total of 797 complaints were filed with the Commissioner for the Protection of Equality by citizens, civil society organizations, legal and other entities. In addition, by its other powers vested in the Commissioner for the Protection of Equality, the institution had issued a total of 215 recommendations containing measures for attaining equality, 17 opinions on draft laws and other acts of general nature; it has also filed criminal charges in one instance and one initiative to assess conformity with the Constitution, and has issued nine warnings and 35 statements. Recommendations pertaining to concrete cases of discrimination have also been almost entirely implemented i.e. in 89.1% of cases recommendations have been adhered to.
In terms of discrimination, an overwhelming number of complaints were filed by private entities. Similar to previous years, out of all complaints filed by private entities, men prevail with 55%, while women constitute 45% of all plaintiffs. The number of complaints filed by legal entities is also on the rise, in particular those filed by civil society organizations. Namely, in 2015, 121 complaints were filed by legal entities, out of which 101 were filed by civil society organizations. Geographically, the largest number of complaints originated from Belgrade Metropolitan Area (25.3%) while the least number of complaints came from South and East Serbia regions (9.5%) and from Kosovo and Metohija (0.2%).
In 2015 the largest number of complaints alleged gender based discrimination (22.1%), closely followed by those allegingdiscrimination based on national affiliation (18.4%), followed by complaints claiming discrimination on the grounds of disability (11.3%) and age based discrimination (9.4%). As for areas in which discrimination is most commonly encountered, much like in previous years, most complaints alleged discrimination in the job recruitment process or workplace related discrimination (36.3%), this being an area where women prevail in the number of complaints filed, while men tend to dominate with the number of complaints in all other spheres of social life. These were followed by complaints claiming discrimination during procedures before public authorities (approximately 23%) and by complaints alleging discrimination in the process of public services provision or utilization of public spaces and facilities (8.3%). Similar to previous years, the largest number of complaints was filed against government bodies i.e. public authorities – a whopping 50%, followed by complaints against legal entities (around 28%), private entities, groups of individuals and lastly, organizations.
With reference to the aforesaid and bearing in mind the number of filed complaints, it would be safe to say that groups most exposed to discrimination in Serbia are women, people with disabilities, members of the Roma national minority, while women and children belonging to these marginalized groups are even worse off as they are frequently exposed to double or multiple discrimination. Women tend to be particularly vulnerable to discrimination on the labor market but gender based violence against women seems to be widespread too. The situation of Roma population is still deplorable and their members are exposed to discrimination in almost all areas of life, in particular in the field of education, labor and employment, social protection and healthcare services. Regarding persons with disabilities, obstacles to full social inclusion persist in the area of education and employment leading to further deterioration in their status due to the lack of support for independent living. Facilities and services remain difficult or impossible to access, with institutionalization risks looming large while their political engagement remains insignificant.
According to complaints filed claiming gender, national affiliation or ethnic origin and disability based discrimination, the most common are those alleging discrimination on the grounds of personal characteristics, namely: age, sexual orientation, marital or family status, health status, membership in political, trade union and other organization, as well as gender identity. One of the reasons for the spike in the number of complaints alleging gender based discrimination was the adoption of the new Law on the Method of Determining the Maximum Number of Employees in the Public Sector, which has led to a large number of complaints filed by women and professional organizations. Due to discriminatory provisions of this piece of legislation, the Commissioner for the Protection of Equality and the Ombudsman have launched an initiative with the Constitutional Court of the Republic of Serbia to assess the conformity with the Constitution. The Constitutional Court found that the implementation of contentious provisions of the present law would lead to irreversible harmful consequences to persons concerned. With reference to the aforementioned, the Constitutional Court has suspended, until the final decision, the enforcement of individual official decisions which would be passed on the basis of contentious provisions of this Law.