Remedies and enforcement

• Author: Kogovsek Salamon, Neza
• Pages: 60-79

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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 Slovenia, the following procedures exist for enforcing the principle of equal treatment:

Competent body

Type of case

Outcome

Human Rights Ombudsman

Violation of Article 14 of the

Constitution (prohibition of

discrimination)

Non-binding decision

Advocate of th e Principle of

Equality

Violation of th e Protection

Against Discrimination Act

(PADA)

Binding decision and

recommendations, but no

sanctions.

Ethics Commission of

Journalists

Code of Ethics of the

Slovenian Association of

Journalists

Non-binding judgments and

opinions

Labour Inspector

Violation of Article 6 or 6.a

of the Employment

Relationship Act

Binding decision, sanctions

Other Inspectorates

Violations of other laws in

the fields protected by

PADA

Binding decision, sanctions

Administrative procedures,

Administrative Court

Discrimination in

administrative procedures

Binding decision, sanctions

Civil courts

Compensation claims due to

discrimination

Binding decision, sanctions

Labour and Social Court

Violation of Article 6 or 6a

of the Employment

Relationship Act,

discrimination related to

social security

Binding decision, sanctions

Criminal courts

Discrimination amounting to

a crime

Binding decision, sanctions

Constitutional Court

Violation of Article 14 of the

Constitution (prohibition of

discrimination)

Binding decision, no

sanctions

- Informal: Human Rights Ombudsman

The principle of equal treatment and the ban on discrimination is incorporated into the

Constitution as the first provision among those ensuring fundamental human rights

(Article 14). The Human Rights Ombudsman148 is a body that is competent to examine

informal complaints and an independent and unbiased form of info rmal protection that is

available to individuals in relation to state authorities, local authorities and bearers of

public authority. The Ombudsman has competence only in the public sector. The

decisions of the Ombudsman are not binding.

148 The basis for the institution of Human Rights Ombudsman is found in Article 159 of the Constitution. The

activities of the Human Rights Ombudsman are defined in the Slovenian Human Rights Ombudsman Act

(Zakon o Varuhu človekovih pravic), 20 December 1993, available at:

www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO300, and the Rules of Procedure of the Human Rights

Ombudsman, 18 October 1995, available at: www.pisrs.si/Pis.web/pregledPredpisa?id=POSL7. The duties

and competencies of the Ombudsman are based on the classic Scandinavian model.

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Any individual who believes that their human rights or fundamental freedoms (in cluding

the right to equal treatment) have been violated by an act or deed committed by a public

body may lodge a petition with the Ombudsman to start proceedings, 149 and th e

Ombudsman can also institute proceedings on its own initiative. The procedur e is free of

charge. By law, th e Human Rights Ombudsm an has the authority to obtain, from the

state and other bodies that it may monitor, all information, irrespective of the degree of

confidentiality, to perform investigations, and in this capacity to call witnesses for

questioning. It does not have the authority to monitor the w ork of judges and courts

except in cases of i mproperly delayed procedures or clear abuse of power. It is

competent only in relati on to matters in the public sphere; however, it can also monitor

the activities of state bodies in reported cases from the private sector. The Human Rights

Ombudsman issues annual reports on th e exercise of human rights, which are consid ered

by the National Assembly. Complaints due to discrimination are o ften brought to the

attention of the Ombudsman.

- Informal: Ethics Commission of Journalists

Printed media is monitored by the Ethics Commission of Journalists. This is a self-

regulating body, composed of nine elected journalists and editors as well as two

representatives of the public, which ensures that the members of the journalistic

community and the authors of journalistic texts and articles comply with ethical and

professional rules. Complaints can be made on breaches of the Code of Journalists of

Slovenia, which prohibits stereotyping (Article 20) and incitement to violence and

intolerance (Article 21). Between 2011 and 2017, there were 18 complaints under each

article, and the Commission found th at there were 11 and five breaches respectively.150

The Commission does not impose sanctions; it only determines whether there has b een a

violation of the code.

- Formal: Procedure on establishing discrimination conducted by the

Advocate of the Principle of Equality

The Advocate has competence in the public and private sectors.

The procedure conducted by the Advocate is now formal and binding. It is also free of

charge (Article 35(1)). Anyone who believes that he or she has been discriminated

against may file a complaint with the Advocate. This individual has the status of a party

to the procedur e (Articl e 33 of the Protection Against Discrimination Act). As parties to

the procedure, the complainants have the right to access the files of th e case, except for

data which have been marked by the Advocate as sensitive personal data (Article 35(2)),

in line with the Personal Data Protection Act. The Advocate may also start a procedure on

its own initiative if it is made aware ab out the existence of discrimination on the basis of

an anonymous complaint, a complaint from a third person or in another way (Article

34(1)). To conduct a procedure in such cases, the Advocate must obtain th e consent of

the individual who has experienced discrimination, unless it is not possible to determine

who experienced discrimination; if a larger group was discriminated against; or if the

case is mo re generally important in the context of protection from discrimination (Article

34(2)). An individual who experienced discrimination but who was not the one who filed

the complaint also has the right to participate in the procedure (Article 34(3)), even

though he or she is not formally a party to the procedure.

149 The Rules of Procedure of the Ombudsman stipulate that the Ombudsman should perform its work in the

Slovenian language. However, anyone who is not familiar with the Slovenian language may lodge a petition

in their own language.

150 Advisory Committee on the Framework Convention for the Protection of National Minorities (2018) Fourth

Opinion on Slovenia - adopted on 21 June 2017, 25 January 2018, p. 24, available at:

https://www.coe.int/en/web/minorities/news-2018/-/asset_publisher/WSzOdQnzJ7kM/content/slovenia-

publication-of-the-4th-advisory-committee-opinion?_101_INSTANCE_WSzOdQnzJ7kM_viewMode=view/.