General legal framework

AuthorKrstic, Ivana
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-
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.

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