General legal framework

• Author: Krstic, Ivana
• Pages: 15-15

15

1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The Constitution of Serbia38 of 2006 includes the following articles that deal with non-

discrimination.

Article 21 proclaims the equality of everyone before the law and the right to equal legal

protection without any discrimination. Article 21(3) contains an anti-discrimination clause:

‘Any direct or indirect discrimination on any grounds, particularly race, sex, national origin,

social origin, birth, religion, political or other belief, property status, culture, language,

age, mental or physical disability, shall be prohibited.’

The Constitution does not provide a definition of discrimination, but it prohibits both direct

and indirect discrimination. It also makes provision for the prohibition of discrimination on

any ground, not just those grounds explicitly mentioned in Article 21, which means that

the list is not e xhaustive. The provision applies to all grounds that are covered by the EU

directives, as sexual orientation is included under ‘any grounds’.39 In A rticle 21 (4), the

Serbian Constitution recognises affirmative action, stating that ‘special measures which

the Republic of Serbia may introduce to achieve full equality of individuals or group of

individuals in a substantially unequal position compared to other citizens shall not b e

deemed discrimination’.

Article 15 guarantees gender equality and states that ‘The State shall guarantee the

equality of women and men and develop equal oppo rtunities policy’. Article 62 of the

Constitution guarantees the equality of spouses.

Article 76(1) provides that ‘Persons belonging to national minorities shall be guaranteed

equality before the law and equal legal protection’, and Article 76(2) states that ‘Any

discrimination on the grounds of affiliation to a national minority shall be prohibited’. Article

76(3) states that ‘specific regulations and p rovisional measures which t he Republic of

Serbia may introduce in economic, social, cultu ral and political life for the purpose of

achieving full equality among members of a national minority and citizen s who belong to

the majority, shall not be considered discrimination if they are aimed at eliminating

extremely unfavourable living conditions which particularly affect them’.

Articles 15 and 76 also apply to all areas that are covered by the directives, as the material

scope of the above-mentioned provisions is broader than those in the directives (including

economic, social, cultural and political life).

These provisions are directly appli cable, while Article 15, Article 21(4) and Article 76(3)

require the adoption of further laws and regulations to enable their imp lementation.

The constitutional equality clause prescribed in Article 21(3) and Article 76(2) can be

enforced against private individuals as well as against the state.

38 Constitution of Serbia (Ustav Republike Srbije), Official Gazette of the Republic of Serbia No. 98/2006, 10

November 2006.

39 The absence of explicit mention of ‘sexual orientation’ in the Constitution has not been challenged in court.