Sensitive or controversial issues

• Author: Bojic, Ines
• Pages: 106-110

106

11 SENSITIVE OR CONTROVERSIAL ISSUES

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

imprisonment.

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.