The Definition Of Discrimination

• Author: Bojic, Ines
• Pages: 16-39

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2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The grounds of discrimination explicitly prohibited in the main legislation transposing the

two EU anti-discrimination directives (as listed in the Introduction, above), are:

- race or ethnic origin or colour

- gender

- language

- religion

- political or other belief

- national or social origin

- property

- trade union membership

- education

- social status

- marital or family status

- age

- health condition41

- disability

- genetic heritage

- gender identity

- (gender) expression42

- sexual orientation

2.1.1 Definition of the grounds of unlawful discrimination within the directives

The Anti-discrimination Act only lists discrimination grounds and does not provide

definitions, which are to be found either in other laws or in the case law of domestic

courts and bodies.

a) Racial or ethnic origin

National law does not provide a definition of ‘race’. In legislation and case law, the term

race is never used alone but is used together with the term ethnic origin (‘race or ethnic

origin’ or ‘race and ethnic origin’).

According to the latest available Ombudsperson’s report, as in previous years, most

complaints of discrimination relate to ‘race or ethnic origin’ (15.6 %).43 Since the Anti-

discrimination Act explicitly prohibits discrimination based not only on race and ethnic

origin, but also on colour and national origin, the four grounds are covered jointly in the

Ombudsperson’s report.44

National law does not provide a definition of ‘ethnic origin’.

41 The ADA introduced health condition as a separate prohibited ground for discrimination with the aim of

protecting people with certain health conditions (e.g. those infected with HIV) that do not constitute

disability.

42 Given the strict wording of the Anti-discrimination Act, which lists as discrimination grounds, inter alia

‘gender identity, expression or sexual orientation’, there is common confusion as to whether gender identity

and expression are separate discrimination grounds. The Ombudsperson interprets this as a single

discrimination ground, for which reason throughout the rest of the report the ground will be referred to as

‘gender identity and expression’.

43 People's Ombudsperson (2020), Report for 2019, available at https://www.ombudsman.hr/hr/izvjesca-

puckog-pravobranitelja/.

44 People's Ombudsperson (2020) Report for 2019.

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The Constitutional Act on the rights of national minorities45 defines a national minority as

‘a group of Croatian citizens whose members have traditionally inhabited the territory of

the Republic of Croatia and whose ethnic, linguistic, cultural and/or religious

characteristics differ from the rest of the population, and who are motivated to preserve

these characteristics’.46

The definition of ethnic origin (narodnost), used by the Croatian Bureau of Statistics is

‘characteristic denoting a person’s affiliation to a particular ethnic group’. Ethnicity is also

interpreted as a sense of belonging to a community (nation), distinguished by the ethnic,

linguistic and cultural affinity of its members as well as the aw areness of the integrity of

their own community and its special qualities in relation to other such communities.47

The definition of ethnic origin was an important legal issue in the numerous citizenship

cases in the 1990s. In (federal) Yugoslavia, citizens had both federal citizenship and

republican citizenship. After Croatia’s independence, people who did not have Croatian

republican citizenship became aliens in Croatia. While ethnic Croats in the same situation

were granted citizenship – the Croatian Citizenship Act provides that any member of the

Croatian People (ethnic Croats) will be considered to be a Cr oatian citizen – no automatic

or facilitated grant of Croatian citizenship was provided for other ex-SFRY citizens who

were permanent residents in Croatia; they had to fulfil all the numerous requirements for

citizenship as real foreigners. Therefore, the main issue in many cases was whether a

person was of Croatian ethnic origin or not. In practice, a person had to prove that s/he

declared her/himself as a Croat before independence.

According to case law:

‘belonging to a certain ethnicity is primarily subjective category, the feeling of

common culture, language and social tradition that connects members of that

community to one unit, but it is necessary that such belonging is expressed in

certain behaviour of a person claiming to be of Croatian ethnic origin, especially by

declaring that ethnic origin in public documents.’48

b) Religion and belief

National law does not provide a definition of ‘religion or belief’, but the Act on the legal

status of religious communities, which regulates the rights and duties of religious

communities and their members, defines religious communities as communities of

natural persons, believers, who realise their freedom of religion through public religious

services and other expressions of their faith.49

The definition of religion used by the Croatian Bureau of Statistics is:

‘a characteristic denoting a person's affiliation to a particular religious system,

irrespective of whether the person is a registered member of a particular church or

religious community or not, or whether he/she practises religion or not.’50

45 Constitutional Act on the rights of national minorities, 13 December 2002, Article 5, Official Gazette

155/2002, 47/2010, 80/2010, 93/2011, Ustavni zakon o pravima nacionalnih manjina.

46 According to Articles 15 and 83 of the Constitution, equality and the protection of the rights of national

minorities are regulated by a constitutional act that requires two-thirds of all members of the Parliament.

47 Office for Human Rights and Rights of National Minorities (2013), ‘Definitions of indicators for the database

on equality data’, June 2013,

https://ljudskaprava.gov.hr/UserDocsImages//dokumenti//definicije_podataka_jednakosti.pdf.

48 See, for example, decisions of the High Administrative Court of the Republic of Croatia Nos. Us-

10396/2009-4 and Us-10396/2009-4 of 15 February 2012.

49 Act on the legal status of religious communities, 4 July 2002, Official Gazette 83/2002, 73/2013, Zakon o

pravnom položaju vjerskih zajednica.

50 Office for Human Rights and Rights of National Minorities (2013), ‘Definitions of indicators for the database

on equality data’, June 2013:

https://ljudskaprava.gov.hr/UserDocsImages//dokumenti//definicije_podataka_jednakosti.pdf.