UN Human Rights Council reviews the obligations of BiH: overview of the state of the human rights of LGBTI persons and recommendations for further action

March 13, 2017

On March 13 and 15, United Nations Human Rights Council will carry out a review of Bosnia and Herzegovina’s realisation of obligations in accordance with the International covenant on civil and political rights. Accordingly, Sarajevo Open Centre referred a submission on the situation in Bosnia and Herzegovina regarding human rights of LGBTI persons and suggested recommendations to the state.

2016 has been a promising year for human rights of LGBTI persons in Bosnia and Herzegovina. The Law on Prohibition of Discrimination has been amended and in addition to sexual orientation and gender identity that were included in the Law in 2009 and were only defined more clearly in 2016, discrimination has been prohibited on the ground of sex characteristics as well. This Law has so far been the first Law in BiH to explicitly protect intersex persons from discrimination. The Criminal Code of Federation of BiH was also amended with hate crime regulation that covers homophobia and transphobia as motives of such crimes. Thus now, all three administrative units’ criminal codes in BiH (two entities and Brčko district) prohibit and sanction hate crimes.

In December 2015, authorities made another pioneering move: Government of Republika Srpska passed their Annual Plan for Implementation of the Gender Action Plan (GAP) for 2016, which also contains specific measures for the protection of LGBTI people’s rights. The government of FBiH followed soon after in March of 2016. This was the first time that the governments in Bosnia and Herzegovina included LGBTI people’s rights in their action plans and have implemented certain activities directly in cooperation with Sarajevo Open Centre. Similar plans are in place for the upcoming period, and ongoing cooperation is expected to continue. The Institution of Ombudsperson of BiH also issued a Special report on the state of human rights of LGBT persons in BiH with human rights violations analysis and concrete recommendations for improvement.

Despite the positive aspects mentioned above, a particularly worrying trend was also noticed in the inadequate processing of the attacks on LGBTI individuals, mostly in cases where they exercise their right to the public assembly: the case of Merlinka in 2014 and the attack on the visitors of the Art Kriterion Cinema in March of 2016.

None of these cases has had a court epilogue so far, and Sarajevo Open Centre has filed an appeal to the Constitutional Court of BiH for violation of freedom of assembly. 2016. has started with several severe human rights violations, one involving a case of illegal imprisonment and forced and involuntary treatment of an individual’s gender identity by his own family which was only stopped after it was reported to the police. The police acted as a mediator instead as a protector of the victim and though they “helped” the victim leave they also mention “he could be cured if he wanted to”.

Another worrying trend is seen in the increase of homophobic bullying and increased negative pressure on LGBTI activists and organisations. The bullying in this specific case is targeted towards individuals associated in any way with an organisation known for LGBTI activism, as well as towards the members of the organisation. Once again, the response of the institutions in charge was inadequate and sporadic.

In 2016 Sarajevo Open Centre documented more 21 cases of hate crimes against LGBTI people, more 200 cases of hate speech towards these people, 5 cases of discrimination on the ground of sexual orientation and gender identity. The number of people inquiring about asylum seeking in EU and USA, of people inquiring about legal gender recognition and the possibility of concluding same-sex partnerships has increased.

An opinion poll carried out by the US-based National Democratic Institute (NDI) revealed that 72% of the LGBTI people surveyed in Bosnia and Herzegovina had been verbally harassed or abused, 51% had been personally discriminated against and 15% had been the victim of physical violence because of their sexual orientation or gender identity.

It is more than clear that BiH has to work harder on the implementation of the existing legislation and policies, and it has to focus directly on combating the causes of homophobia and transphobia in society through concrete measures and actions. Such measures and actions are to be developed through a specific Action plan for equality of LGBTI persons in BiH that is to be developed in 2017 by Ministry of human rights and refugees of BiH. However, so far the Ministry is still in the process of assembling the working group for this Action plan.

In the submission Sarajevo Open Centre pointed out that Bosnia and Herzegovina should:

Develop and adopt a periodic Action Plan for Equality of LGBTI persons be devised, in line with the Recommendation CM/Rec(2010)5 by the Council of Ministers of the Council of Europe, addressing the measures for tackling discrimination on the basis of sexual orientation or gender identity in order to create a system in which every task would be clearly assigned to departmental jurisdictions.
Ensure the adequate sanctioning of the perpetrators of violence against the guests of festival Merlinka in 2014, and the guests of Art Cinema Kriterion in 2016 and proper mechanisms of protection of freedom of assembly.
Change and amend the Criminal Codes of all three jurisdictional units (Republika Srpska, the Federation of BiH and Brčko District) and expand the provisions on inciting hate and violence so that they include sexual orientation and gender identity as protected grounds.
Pass and implement laws in all three jurisdictional units (Republika Srpska, The Federation of BiH and Brčko District) which would legally recognise same-sex partnerships and define the rights and obligations arising from cohabitation of two persons in a same-sex partnership (with a particular focus on social and economic rights).
Pass and implement laws in all three jurisdictional units (RS, the Federation of BiH and Brčko District) that would simplify the procedure of legal gender recognition and which would enable the legal change without having to complete the medical transition.
Pass and implement laws in all three jurisdictional units (RS, the Federation of BiH and Brčko District) which would define the duties of medical institutions to form teams and train professionals who could follow the process and perform medical procedures for gender reassignment in Bosnia and Herzegovina, and which would establish the obligation of the Health Bureau to cover the cost of these procedures out of the health insurance budget.
With the aim of fighting homophobia and prejudice within institutions keep educating and informing the judges, prosecutors, police officers and state officials on hate crimes, incitement to hate and violence against LGBTI persons.
Introduce LGBTI inclusive modules in curricula and programs in law schools and police academies and in the permanent and specialist programs of training for police officers, and civil service exams.
Develop and adopt rules and procedures of cooperation between prosecutors and the police in order to ensure proper, timely and adequate investigation and processing of hate crimes through clearly defined obligations of both all parties involved in the process.
Introduce LGBTI-specific modules in the education of future teachers, social workers, healthcare workers, psychologists and pedagogues with the specific focus on incitement to violence and homophobic bullying and its prevention.
Change the Law on Asylum BiH, so that sexual orientation and gender identity are listed explicitly as grounds for seeking asylum and possible grounds for persecution.
Recognise same-sex partnerships as a basis for awarding temporary residence to partners of BiH citizens on the grounds of uniting a family, through the Law on Foreigners.

You can find the full text of the submission on the following link.

[1] https://soc.ba/en/better-protection-of-lgbti-persons-through-the-amendments-to-the-anti-discrimination-law-of-bih/

[2] https://soc.ba/en/federation-of-bih-finally-adopts-hate-crime-regulation/

[3] https://soc.ba/en/for-the-first-time-one-of-the-governments-in-bosnia-and-herzegovina-has-included-the-rights-of-lesbian-gay-bisexual-and-transgender-people-in-their-action-plans/

[4] https://soc.ba/en/government-of-the-federation-of-bih-has-included-the-rights-of-lgbt-people-in-their-action-plans/

[5] https://soc.ba/en/special-report-on-rights-of-lgbt-persons-in-bih-presented-in-bih-parliament/