Remedies and enforcement

• Author: Krstic, Ivana
• Pages: 57-69

57

6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In Serbia, the following procedures exist for enforcing the principle of equal treatment

(judicial/ administrative/alternative dispute resolution such as mediation).

Civil procedure – Civil proceedings in discrimination cases are regulated by three anti-

discrimination laws (the LPD, the LPDPD and the Gender Equality Act (GEA)). The general

rule is that provisions from general litigation apply (which are enshrined in the Civil

Procedure Code) unless it is explicitly regulated differently (lex specialis). However, it was

necessary to create a special procedure for discrimination cases as general litigation is not

adapted to the specific content and particularities of the proceedings in discrimination

cases, nor does it se cure the provision of legal protection that is of satisfactory quality. A

special civil action is designed to ensure the provision of effective and efficient civil

protection from discrimination which is in accordance with international and European

standards in this area.

The first special anti-discrimination p rocedure in Serbia was estabished by the LPDPD in

order to enhance the court procedure in cases of discrimination against people with

disabilities. These provisions modify the provisions which regulate the general civil

procedure. First, apart from the local court of general jurisdiction, the court situated in the

area where the complainant is domiciled or has temporary residence shall also have

jurisdiction over the proceedings (Article 41). The complain ant can request:

- court prohibition of further discriminatory behaviour;

- remedy actions to remove the consequences of discriminatory behaviour;

- the court’s confirmation that an action or behaviour is discriminatory; and

- compensation for pecuniary and non-pecuniary damages incurred due to

discriminatory behaviour.173

The LPDPD in Article 44 provides that revision, a special appellate review for legal questions

and serious breaches of procedure, is always a vailable in cases of discrimination (with no

time limit). This law allows for temporary measures at the request of the complainant when

initiating a lawsuit, in the course of the proceedings and after the termination of the

proceedings, until the court decision is enforced. The court is allowed to pass a temporary

measure in order to prevent discriminatory treatment, with a view to eliminating the risk

of violence or major irreparable damag e.174 The court is obliged t o decide on a request to

pass a temporary measure within 48 hours of receiving the request. However, the LPDPD

does not recognise a reversal of the burden of proof.

The LPD also sets out the procedure for initiating lawsuits in cases of discrimination which

can be initiated by anyone who claims to have suffered discriminatory treatment. It

includes th e same provisions in relation to the c ourt’s jurisdiction for victim s of

discrimination and revision as the LPDPD. The LPD also recognises temporary mea sures,

although the court must decide on the request not within 48 hours, but within three days.

It further provides several positive solutions t o protect victims of discrimination. First, it

provides that the proceedings will be conducted swiftly (Article 41(3)). Secondly, Article

173 In this complaint, the rules in the Law on Contracts and Torts apply, including the statute of limitations

(Article 376). See Law on Contracts and Torts (Zakon o obligacionim odnosima), Official Gazette of SFRY,

Nos. 29/1978, 39/1985, 45/1989 – CC, 57/1989, Official Gazette of SRY, Nos. 31/1993, 22/1999, 23/1999,

35/1999, 44/1999, Official Gazette of SCG, No. 1/2003 – Constitutional Charter, 1 July 1978.

174 A request to pass a temporary measure must prove the necessity of doing so in order to eliminate the risk

of violence, use of force or irreparable damage (Article 45(2)).