PROTECTION FROM DISCRIMINATION

Sunday, 28 March 2004 01:00

Tanja Pavlović Križanić

Council of Europe expert for the Non-Discrimination Review project

I Introduction

At the time this text was written, two and a half years have past since “democratic change of the power” in Serbia. In the events that preceded October 5th 2000 (is this even necessary to mention?) all minority groups had participated in various ways, including LGBT activists. Bearing this in mind, minorities have justifiably expected from new authorities, in accord with pre-election promises, to immediately begin fundamental reform of the constitution and legislation, and to establish international standards for banning discrimination in all domains of life – in labor legislation, criminal legislation, marital and family law, media legislation, social welfare and health care, process regulations.   

Speed of the legislation changes, especially in the domain of the protection from discrimination, did not satisfy expectations of the LGBT minority group – especially bearing in mind the scale of system discrimination that persons of same-sex orientation were exposed to in the past. Lesbians, gay men, bisexuals, and transsexuals were exposed to crudest forms of deprival and revocation of civil and political rights. National and international human rights organizations have recorded severe cases of abuse, mistreatment, and hate speech against homosexuals, who were deprived of most civil and political rights and freedoms – beginning with right to protection from the torture to right to personal dignity and freedom of speech and gathering. [1] According to series of indicators, discrimination of sexual minorities is so customary and present that citizens became completely accustomed to it. Moreover, the whole political programs and practice of some political parties and associations (Serbian Radical Party, Party of the Serbian Unity, Student Association of Faculty of Philosophy “Sveti Justin Filozof”, “Obraz”) are built on the concept of discrimination and intolerance towards sexual minorities. 

Bearing in mind the level of endangerment of this minority community, the breadth and roots of prejudices against them, the state has had, first of all, legal-political, but also moral obligation to take all measures to prevent future different treatment of individuals solely because of their publicly stated or assumed sexual orientation. Although there were some worthy efforts in that direction, this mainly did not happened. Issues of the legal protection of the sexual minorities from discrimination are still completely open in our country. In this way, it is hard to believe that foundations for democratic organization of Serbia as a modern political society, and a state that is legitimate for all its citizens and all minority groups.   

II Constitutional Law

In the domain of the constitutional-legal protection from discrimination and guaranteed minority rights of the persons with same-sex sexual orientation, there are great differences how this issue is solved in the federal level and republics level. In the Constitutional Charter of Serbia and Montenegro “respecting human rights of all persons in its jurisdiction, protection and promotion of human dignity, equality and rule of law, joining European structures, especially European Union and bringing regulations and practices in accord with European and international standards” is proclaimed as a basic goal of founding federation Serbia and Montenegro.

In the Charter on Human and Minority Rights and Civil Freedoms (so called “Little Charter”) which is an integral part of the Constitutional Charter, it is said that everyone is equal in front of the law, and that every indirect or direct discrimination on any basis, including discrimination based on race, color, gender, nationality, social background, birth or other similar status, religion, political or other beliefs, property status, culture, language, age, or psychological/mental or physical disability is forbidden. Charter on Human and Civil Freedoms in this part, where it predicts protection from discrimination, in principle forbids discrimination on any basis, but it does not explicitly mention, among the protected groups, persons with same-sex sexual orientation.  

Constitution of the Republic of Serbia has a regulation on prohibition of discrimination, in which it is said that: “Citizens are equal in rights and obligations, and they have equal protection in front of the state and other bodies, no matter what is their race, gender, birth, language, nationality, religion, political or other belief, education, social background, property status or any other personal feature.” It is important that RS Constitution as a base for discrimination states “other personal feature”, and in that way, as well as Pact on Civil and Political Rights and European Convention on Human Rights and Basic Freedoms, leaves the possibility for prohibition of discrimination on bases that are not explicitly stated. Standard “personal feature” in fact represents substitute for the term “status” that is used in the Pact and the Convention. Nevertheless, the way the framer of a constitution outlined this regulation is far from perfect. Namely, this regulation (or any other in the RS Constitution) does not guarantee equality of all in front of the law, which is certainly big omission. International documents, such as the Pact on Civil and Political Rights, as unavoidable segment of whole standardization of protection from discrimination also states the right to “equal protection of the law” (une egale protection de la loi).[2]Right to equal protection of the law as an international standard has two aspects. On one hand, it forbids discrimination by the way of law and other regulations and also represents obligation to guarantee equal and effective protection against all discrimination. Also, Constitutional regulation speaks only about “citizens”, from which we could conclude that foreigners, expatriates, or refuges are not subjects of its protection. Finally, discrimination is forbidden only when it comes from the state or other bodies. That could mean that state has no obligation to prevent discrimination when other physical or juristic persons, for example, private employers, owners of restaurants or cafés, owners of the apartments for rental etc carry it out.