Sensitive or controversial issues

AuthorBojic, Ines
11.1 Potential breaches of the directives at the national level
a) Burden of proof and intent in anti-discrimination proceedings
Although in Croatia national law does contain regulations on a shift of the burden of proof
in anti-discrimination proceedings from the claimant to the defendant, the interpretation
of this rule in practice is still questionable and not completely in line with EU law.
Case law on this issue is also still poorly developed and the rule on the burden of proof is
only sometimes mentioned in court decisions.
The general impression is that the courts still perceive the claimants to be the ones who
need to prove discrimination.
In this sense the rule that claimants are obliged only to make probable that
discrimination had occurred are interpreted very broadly and overlap with the rules on
burden of proof.
This is especially problematic in work-related anti-discrimination proceedings, in which
the claimant often does not have clear evidence of discrimination and possible witnesses
to the discrimination who are current employees of the defendant are reluctant to give
evidence before the court in favour of claimant.
Therefore, although the Article 8 of Directive 2000/43 and Article 10 of Directive 2000/78
are correctly transposed in national legislation through Article 20 of the Anti-
discrimination Act, these rules are not correctly applied in practice, which can amount to
potential breaches of the directives.
The case law is a lso still not quite clear regarding the issue of intent as an element of
discrimination. The courts often contemplate whether the discriminatory treatment was
intentional, that is whether the defendant acted with specific intent, and are reluctant to
find discrimination if the intent is not evident. Bearing in mind that the directives do not
specify intent as an element of discrimination, this kind of interpretation of discrimination
in practice can also amount to potential breaches of the directives.
b) Sanctions
Although rules on sanctions are in line with the directives, often the sanctions offered in
practice cannot be considered to be effective, proportionate and dissuasive.
Offences motivated by discrimination are usually prosecuted as misdemeanours and not
as criminal offences, although the basis for criminal prosecution in the law exists. In
misdemeanour cases, as a rule, judges mitigate the fines set by law, so that the amounts
imposed are rather low (EUR 40 to EUR 400) and do not contribute to the specific and
general prevention of discrimination.
Furthermore, although the law prescribes imprisonment as a punishment in
misdemeanour cases, a financial fine remains the most common sanction and is imposed
in 90 % cases, wh ile in the remaining cases the defendants are sentenced to community
service. This meant that in 2019, in only one case was the defendant sentenced to
In criminal proceedings, probation remains the most commonly imposed sanction while
prison sentences are regularly not imposed, meaning that the most severe sanctions,
although provided for, are not used in practice.

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