The definition of discrimination

AuthorKrstic, Ivana
2.1 Grounds of unlawful discrimination explicitly covered
The following grounds of discrimination are explicitly prohibited in th e main legislation
transposing the two EU anti-discrimination directives:
The Constitu tion contain s a brief list of prohibited grounds of dis crimination, specifically
mentioning (in Article 21(3)) race, sex, national origin, social origin, birth, religion, political
or other opinions, property status, culture, language, age, and mental or physical disability.
Article 2(1) of the comprehensive LPD contains a longer list of prohibited grounds than the
Constitution, specifically mentioning race, skin colour, ancestry, citizenship, national
affiliation or ethnic origin, language, religious or political beliefs, gender, gender identity,
sexual orientation, financial position, birth, genetic characteristics, health, disa bility,
marital and fa mily status, p revious convictions, age, appearance, and membership of
political, trade union and other organisations.
The Law on the Prevention of Discrimination against Persons with Disabilities prohibits
discrimination based on disability.40
The Labour Law41 prohibits discrimination based on sex, birth, language, race, colour, age,
pregnancy, health condition or disability, national origin, religion, marital status, family
obligations,42 sexual orientation, political or other opinions, social origin, property and
membership of political organisations and trade unions.
2.1.1 Definition of the grounds of unlawful discrimination withi n the directives
As in the EU directives, national law does not provide definitions of the different grounds
of discrimination. However, the interpretation of the terms is equivalent to that in EU law,
although jurisprudence in the area of anti-discrimination is not yet very well developed. In
addition, as internat ional law is directly applicable in Serbia, a judge can, in the event of
inconsistencies in the interpretation of different terms, directly apply definitions that are
provided in EU directives and CJEU jurisprudence. Nevertheless, judges a re reluctan t to
apply international and European norms directly, so it is important to define some grounds
that could be interpreted differently.43
a) Racial or ethnic origin
‘Race’ and ‘ethnic origin’ ar e not defined in the LPD. However, Article 26 of the Law on
Asylum and Temporary Protection44 suggests that race refers to skin colour, d escent and
membership of a specific ethnic group. In ad dition, nationality according to this Law
means ‘membership of a group that is spe cific in terms of it s culture, ethnic or linguistic
identity, common geographical or political origins, or its relationship with the population of
another state, and may also include citizenship, although citizenship is a separate ground
40 The position of people with disabilities is further supported by two pieces of legislation adopted in 2015: the
Law on the Use of Guide Dogs, Official Gazette of the Republic of Serbia, No. 29/2015, 31 March 2015, and
the Law on the Use of Sign Language, Official Gazette of the Republic of Serbia, No. 38/2015, 7 May 2015.
41 Labour Law, Official Gazette of the Republic of Serbia, Nos. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014,
13/2017, 113/2017, 95/2018, 15 March 2005.
42 'Family obligations' probably means family status, as this is the only law containing this ground of
43 See, e.g. European Court of Human Rights (ECtHR), Dimitras and Others v. Greece, Nos. 42837/06,
3269/07, 35793/07 and 6099/08, 3 June 2013.
44 Law on Asylum and Temporary Protection (Zakon o azilu i privremenoj zaštiti), Official Gazette of the
Republic of Serbia, No. 24/2018, 3 April 2018.

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