Personal and material scope

• Author: Krstic, Ivana
• Pages: 31-45

31

3 PERSONAL AND MATERIAL SCOPE

3.1 Personal scope

3.1.1 EU and non-EU nationals (Recital 13 and Article 3(2) Directive 2000/43

and Recital 12 and Article 3(2) Directive 2000/78)

In Serbia, there is a residence requirement for protection under the relevant national laws

transposing the directives. Thus, the LPD prescribes that the law applies to ‘a n individual

residing on the territory of the Republic of Serbia or a territory under its jurisdiction,

regardless of whether that individual is a national of the Republic of Serbia, som e other

state or a stateless person’. It can be derived from the wording that this requirement

means legal residence and not only presence on the state territory, as there is a difference

between the terms ‘reside’ (boraviti) and ‘is present’ (nalazi se na). The LPD requires that

a person is resident in the Republic of Serbia, regardless of their citizenship. In the case of

a cross-border worker (for example, someone who resides in Croatia and works in Serbia),

it can be argued that this person is not covered by the LPD. How ever, Article 21 of the

Constitution also applie s, which means that the LPD mu st be interpreted in accordance

with the constitutional provisions and must therefore provide protection in this case. This

dilemma is not resolved, even through Article 3(2), which states that a foreigner, in

accordance with international treaties, has all the rights gua ranteed by the Constitution

and by law, with the exception of those rights that, in accordance with the Constitution

and the law, are only enjoyed by the citizen s of the Republic of Serbia. However, in

practice, the Commissioner for the Protection of Equality acts if complaints are submitted

as a result of discrimination against asylum seekers and migrants, and does not question

if they are residing legally or illegally in Serbian territory (undocumented migrants are also

covered).101

3.1.2 Natural and legal persons (Recital 16 Directive 2000/43)

a) Protection against discrimination

In Serbia, the personal scope of anti-d iscrimination law covers natural and legal persons

for the purpose of protection against discrimination.

Article 3(1) of the LPD states that everyon e shall have the right to adequate protection

from all forms of discrimination by the authorised courts and other public administration

bodies o f the Republic of Serbia. In addition, Article 2(1) states t hat discrimination can

occur against persons and groups as well as members of their families or persons close to

them. Article 2(2) explains that the terms ‘per son’ and ‘everyone’ refer to individuals as

well as to ‘any legal entity registered or operating on the territory of the Republic of Serbia’.

b) Liability for discrimination

In Serbia, the personal scope of anti-d iscrimination law covers natural and legal persons

for the purpose of liability for discrimination. Thus, Article 4(2) provides that everyone shall

be obliged to respect the principle of equality and the prohibition o f discrimination.

Article 2(3) of the L PD defines the terms ‘person’ and ‘everyone’, which shall be used t o

designate individuals residing on the territory of the Republic of Serbia or a territory under

its jurisdiction, regardless of whether those individuals are nationals of S erbia, anoth er

state or stateless persons, as well as any legal entity registered or operating on Serbian

territory.

101 See, e.g. Commissioner for the Protection of Equality (Poverenik za zaštitu ravnopravnosti), C. K. P. R. v.

Railways of Serbia, complaint No. 07-00-575/2016-02, 27 March 2017.