Published on web portal www.diskriminacija.ba
In January 2016 company that has cooperated with Sarajevo Open Center for years has refused to place posters that announced Merlinka Festival. It was a reason for Sarajevo Open Center to file a lawsuit.
Sarajevo Open Center will be represented on court by the organization called Vaša Prava u BiH. It is the first case of this kind in BiH.
„We evaluated that there is responsibility for discrimination or unequal treatment in providing public services and goods on the market. SOC has cooperated with this company for years and in the beginning, they agreed with the terms, accepted their responsibilities, accepted all contractual elements but when the posters were printed and when they saw the content of the posters they said that they will not be placing them in public and asked SOC to pick them up or they will send them back. This is discrimination between legal persons, and the substance of discrimination is that one subject excluded other from the possibility to buy goods and services on the market, that it treated that subject unequally because that subject represents a minority group. In this situation those were LGBT people and promotion of their human rights, because posters were created for that goal. To recap: Company accepted the work initially, but refused when they were made familiar with the content of the posters. It is possible that the aforementioned company misunderstood the content on those posters but it is irrelevant because you cannot place someone in unequal position on the market just because you do not like that subject or what they do”, explains Emir Prcanović, director of Vaša Prava in BiH.
He states that this is the first case of this kind in front of the courts of Bosnia and Herzegovina. “This is, unfortunately, first case of this kind. If we had precedents, we would not be in a difficult position to find innovative ways to prove motive and responsibility because it is very hard to do. Proving discrimination in this case is hard but in many other as well because there is a lack of logic and common sense about the things that are and that are not discrimination. I am afraid that we will face questions in court that are not related in any way with substance of the problem, and that is the questioning if there was a contract between two legal subjects about concrete work etc., even though the contract is a different part of the issue because both subjects came to an agreement. We want to talk about the fact that unequal treatment and discrimination occurred” says Prcanović and gave a parallel that something similar could happen to a political party if a company that places posters refused to place theirs because they do not like the message it is conveyed on them.
For example, Constitutional Court of Serbia in 2011 accepted the appeal of Pride organizers and declared the decision of Ministry of Internal Affairs to change location of the event as unconstitutional. Court decided that the freedom of expression and freedom of assembly were violated in that case.
Prcanović states that they are relying on the practice of European courts. “In EU countries institutions that are in charge to fight the discrimination such as Ombudsman do not have problem with proving discrimination. It is routine work for them. If you have a case where two males that hold hands are not allowed to enter a club because someone on the door assumed that they are gay couple – it is not important if discrimination was committed based on the assumption or a fact, only thing that is important is that it was committed. We are still far away from that level in BiH. Here it is still not considered discrimination when Roma people are not allowed in a cafe because it is “disturbing other customers”. If discrimination cases were solved faster and if we had more cases on courts we would have less discrimination. We believe that it takes just one positive court ruling for message to be sent. Courts in Croatia are led by the effect of deterrence when awarding large compensation to the victims. This way the message is sent to all possible future perpetrators of discrimination. I have read one sentence where judge explains that the compensation for the victim should be proportional to the damage the victim suffered but that he wants to increase it more than that because he wants for the sentence to have effect of deterrence because the judge finds that he lives in society where women have different treatment from men and that it should not be a subject of harassing action of any kind” says Prcanović.
Ombudsman in BiH emphasizes that according to Law on Prohibition of Discrimination in BiH burden of proof is placed upon perpetrator of discrimination.
“It is hard to say in specific cases without enough information, but in principle, discrimination is possible between companies or legal subjects. It is possible that someone refuses to work with a company whose owner is a Roma person. In those cases, subject of discrimination has to prove that other companies offer their work under same circumstances and that the other company was picked because it is not related with Roma people. Burden of proof is on the person that is accused of discrimination and that person has to prove that he or she had not committed discrimination”, says Jasminka Džumhur, Ombudsman in BiH.
Prcanović finds that courts in BiH do not understand discrimination.
“Amendments to the Law on Prohibition of Discrimination in BiH defined very well all categories of discrimination but small number of cases ended up on courts on this ground, and those existing cases show that we are not prepared to fight discrimination. Law states that victim should receive compensation but we still have problems with grasping that. We have a case of Redžo Seferović, Roma person from Zavidovići who was thrown out of café and that trial is ongoing for 6 or 7 years and still has not reached its conclusion. The question is, where is a compensation or any form of satisfaction for a victim in that case” states Prcanović. Judicial problems were acknowledged in the institution of Ombudsman in their annual Special Report on the Situation of LGBT Persons in BiH. The report has recommendations for High Judicial and Persecutorial Council of BiH and entity centers for education of judges and prosecutors with special focus on issue of human rights of LGBT people.
“It is a fair conclusion that, according to information from the case management system, there is no track of number of people that were victims on grounds of sexual orientation. Therefore, courts do not have information if there were any ongoing or finished cases in which subjects were LGBT persons. Some courts said that there were no cases of this kind”, states Ombudsman in its special report. The report also emphasizes that European Court for Human Rights opinion is that states have an obligation to conduct thorough investigation about potential racial motive in crimes that were committed.
“Treating racially motivated violence and brutality the same way as those cases without it, is ignoring the specific nature of those crimes that are especially destructive for fundamental rights. When hate crime is proven on court, sentence should be bigger because of the motive and the effect that those crimes have not only on victim but on entire society. To improve the deterring effect of a sentence, judge should point out in the sentence that bigger sentence is based on those motives”, states Ombudsman.
Ombudsman in its report highlight the fact that Amendments to the Law on Prohibition of Discrimination in BiH improved legal frame for antidiscrimination because sexual orientation and gender identity are now correctly defined in the law as well as grounds for discrimination. Besides, as a prohibited ground for discrimination the law states sexual characteristics which makes Bosnia and Herzegovina first country in Southeast Europe that includes in its antidiscrimination legislation protection of intersex persons in all areas of life. The law finally regulates adequately ways and means for protecting lesbians, gays, bisexuals, trans* and intersex people from discrimination.
“Prohibition of unequal treatment is applied to all public bodies, all natural and legal persons, in public and private sector, in all spheres, especially: employment, membership in professional organizations, education, training, housing, health, social protection, goods and services designated for public and public places together with performing economic activities and public services. The law requires for all other laws and regulations to be harmonized with its provisions. It will also be applied in cases of incompliance of other laws with this Law within the proceedings based on this Law” states Ombudsman’s special report.
Ombudsman also emphasizes that penal codes in BiH have provisions for incriminating and sanctioning behaviors that possess elements of a crime or offense.
“The specifics of those crimes against LGBT people is that they are fueled by prejudices, not accepting differences, hate and intolerance. That is why it is important that the legislation recognizes that specific motive in illegal and violent actions where perpetrator is motivated by prejudices and hate towards certain social group”, it is stated in the report.