Compliance and enforcement aspects (horizontal provisions of all directives)

AuthorKrstic, Ivana
11 Compliance and enforcement aspects (horizontal provisions of all
11.1 General (legal) context
11.1.1 Surveys and reports about the particular difficulties related to obtaining legal
The last comprehensive survey on particular difficulties related to obtaining legal redress
was done by the World Bank in 2012, also analysing regional framework on free legal aid
and proposing concrete solutions for the future law regulating legal aid in Serbia. Certain
difficulties are mentioned in some surveys or analyses that also deal with other aspects of
non-discrimination law. The latest of that kind is the study on Equality in Practice, where
authors highlight some specific limits for obtaining legal redress. The authors claim that
good legal framework is seriously impeded by three key factors: many individuals in Serbia
are unaware of their rights to equality and non-discrimination; they cannot afford to seek
legal redress when violations occur; and they have difficulties in access to the buildings.218
11.1.2 Other issues related to the pursuit of a discrimination claim
There are still some open issues or questions of concern related to the pursuit of a
discriminatory claim. First, some victims are reluctant to submit a lawsuit due to traditional
considerations or fear of consequences. Discrimination cases are not treated as urgent,
despite the normative provision. It is illustrative to note that in one small city in Serbia,
one employee submitted a lawsuit for sexual harassment against her employer and the
president of the municipality. She and he r family were exposed to maltreatment from
other employees, and citizens who supported the president. Her case got media coverage
and a lot of pressure was put on her and her family to abandon the lawsuit. Despite all
these facts, her case was not relocated to another court as the assigned judge and the
president of the court are friends with the president of the municipality.
Sometimes higher courts show less understanding and knowledge on gender equality than
lower courts. It is interesting to mention that in one case, the Commissioner initiated
strategic litigation for discrimination on the grounds of sex and sexual or ientation. In
November 2017, a law faculty professor published an article in the Internet edition of one
magazine under the title Domestic Violence and Violence against the Family. The author
stated that the Law on the Prevention of Domestic Violence does not intend to protect the
poor, but:
women regardless of whether they are weak or strong, loved or unloved, nervous,
freaky and well-off, whether they have lover or not, whether they earn or are
dependent, whether they ha ve entered into a property or have moved into the
husband's apartment.
The author further advocates traditional and patriarchal organisation of a family, in which
the man is the head of the family and should make all important decisions regarding the
family, which put women in an unequal position. The Commissioner emphasised that
protection from domestic violence should not be selective, depending on the personal
circumstances of each woman. The first instance court found that the author is a public
figure and that he has a duty not to advocate discrimination and ideas that encourage
discrimination, and which can have detrimental effects on democratic processes and
human rights guarantees in a society.219 Unfortunately, the higher court overturned the
decision, finding that the author of the text is protected by his freedom of expression and
218 Petrušić, N., Beker, K. (2018), Equality in Practice in Serbia, Implementing Serbia's Equality Laws, Equal
Rights Trust, 87.
219 Higher court in Novi Sad, II. 1344/2017, judgment from 8 May 2018.

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