Compliance and enforcement aspects (horizontal provisions of all directives)

• Author: Krstic, Ivana
• Pages: 73-81

73

11 Compliance and enforcement aspects (horizontal provisions of all

directives)

11.1 General (legal) context

11.1.1 Surveys and reports about the particular difficulties related to obtaining legal

redress

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.