Remedies and enforcement

AuthorKogovsek Salamon, Neza
Pages60-79
60
6 REMEDIES AND ENFORCEMENT
6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,
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.
61
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/.

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