The definition of discrimination

• Author: Durbáková, Vanda
• Pages: 17-35

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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 (listed in the Introduction, above) are outlined below.

Grounds explicitly covered by the Constitution: sex, race, skin colou r, language, belief,

religion, political affiliation or conviction, national or social origin, nationality or ethnic

origin, property, lineage/gender or any other status.80 The Constitutional Court has also

confirmed that sexual orientation is a constitutionally prohibited ground of discrimination.81

Grounds explicitly covered by the Anti-discrimination Act (relevant for the fields of ‘labour

relations and related legal relations, social security, healthcare, provision of goods and

services and in education’) are:82 sex, religion or belief, race, affiliation with nationality or

an ethnic group, disability, age, sexual orientation, marital status and family status, colour

of skin, language, political or other opinion, national or social origin, property,

lineage/gender or other status, or the reason of reporting criminality or other anti-social

activity.83

Grounds explicitly covered by other laws (in addition to those listed in the Anti-

discrimination Act) are, for example, trade union activities,84 unfavourable state of health85

and genetic features.86

2.1.1 Definition of the grounds of unlawful discrimination withi n the directives

a) Racial or ethnic origin

The terms racial origin and ethnic origin are used in the provisions of many laws (especially

in connection with anti-discrimination provisions or provisions prohibiting racism and

intolerance), albeit without any legal definitions.

Criminal law literature and commentaries state that race means a group of people differing

from others due to various typical features, especially physical ones (e.g. colour of skin),

regardless of the fact that the members of the race concerned live within the territory of

the state.

Criminal law literature characterises an ‘ethnic group’ as a

‘historically formed group of people connected by common historyĽ distinct cultural

features (mainly language) and common mentality, traditions, and possibly a distinct

way of life. Representatives of a given ethnic group have their own name … and have

an understanding of mutual belonging and at the same time distinctiveness from

other communities. An ethnic group usually exists beyond the borders of one state.

In Slovakia an example would be the Roma.’87

The Supreme Court confirmed in 2013 that the Roma represent an ethnic group. 88

80 See Article 12(2) of the Constitution.

81 See the Finding of the Constitutional Court of the Slovak Republic, PL. ÚS 8/04-202, 18 October 2005.

82 Anti-discrimination Act, 365/2004, Section 3(1).

83 Anti-discrimination Act, 365/2004, Section 2(1).

84 Act No. 311/2001 Labour Code, as amended (zákon č. 311/2001 Z. z. Zákonník práce v znení neskorších

predpisov), 1 April 2002, Section 13(2).

85 See Labour Code, 311/2001, Article 1 of the Basic Principles.

86 See Labour Code, 311/2001, Article 1 of the Basic Principles and Section 13(2).

87 SamašĽ O.Ľ StiffelĽ HĽ TomanĽ P (2006)Ľ Trestný zákon – Stručný komentár (The Criminal Code: a brief

commentary), Bratislava, Iura Edition, spol. s r. o., pp. 301-302.

88 Decision of the Supreme Court of the Slovak Republic, 4 Tdo 49/2012, 19 March 2013, pp. 7-8.

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The Slovak courts have a strong tendency to interpret the concept of (Roma) ethnicity, in

the context of hate speech and hate crimes, narrowly. Evidence of this can also be found

in the decision of the Supreme Court of 2013.89 The Supreme Court argued, inter alia, that

the word ‘Gypsy’ (both as a noun and as an adjective) belongs to a group of w ords that

are frequently used as a part of the codified state language, and that the usage of this

word alone cannot indicate that a crime of defamation of nation, race and conviction

pursuant to Section 423(1) of the Criminal Code has been committed.90 In 2019, the Slovak

National Centre for Human Rights (the Slovak equality body) issued its expert opinion on

the ground of ethnic and racial origin, mostly summarising the international legal

framework and case law in this field. The centre did not provide further explanation of how

the concept of ‘ethnic and racial origin’ should be interpreted.91

b) Religion and belief

Slovak law provides no definition of the terms religion and belief. The Criminal Code instead

uses the expression ‘confession/creed’Ľ which is explained in law commentaries as ‘the

active or passive relation to a particular religion as to the general theory of the

interpretation of the world presented by a particular faith’.92

Act 308/1991 on Freedom of Religious Belief and the Status of Churches and Religious

Societies uses the concept of religious belief but fails to define it. For the purposes of the

act, any person professing a religion is considered to be a believer. The agreement on

religious education93 between the Slovak Republic and the registered churches and

religious societies deals only with ‘religion’ as defined by the doctrine of churches or

religious societies registered in Slovakia

‘religion and religious education is taught according to th e educational programmes

and curricula approved by a registered church or religious society after receiving an

opinion of the Ministry of Education of the Slovak Republic.’94

The Slovak legal system makes no clear distinction between religion, confession/creed and

belief.

Both the Constitution and the Anti-discrimination Act state explicitly that discrimination

against a person without a religion shall be deemed to be discrimination on the ground of

religion or belief. In 2001, the Constitutional Court also stated that the fact that someone

is a minister of a certain church constitutes ‘another status’ (a formulation at the end of

the list of prohibited grounds of discrimination contained in the Slovak Constitution) and

hence such a person must not be advantaged or disadvantaged on this ground. 95

Act 308/1991 on Freedom of Religious Belief and the Status of Churches and Religious

Societies stipulates rules for the registration of churches and religious societies in Slovakia.

Under these rules, a church or a religious society can be registered only when it submits a

statutory declaration from 50 000 adult members confirming their membership of the

church or religious society, their permanent residency in Slovakia and Slovak citizenship.

The registration process is important, since only registered churches and religious societies

89 Decision of the Supreme Court of the Slovak Republic, 4 Tdo 49/2012, 19 March 2013.

90 Decision of the Supreme Court of the Slovak Republic, 4 Tdo 49/2012, 19 March 2013, pp. 6-7.

91 Slovak National Centre for Human Rughts (2019), Expert opinion on protected ground of racial and ethnic

origin, available at

http://www.snslp.sk/CCMS/files/Odborn%C3%A9_stanovisko_k_obsahu_chr%C3%A1nen%C3%A9ho_d%C

3%B4vodu_rasy_a_etnicity.pdf.

92 See e.g.Ľ StiffelĽ H.Ľ KočicaĽ J. (2001)Ľ Trestný zákon: Stručný komentár (The Criminal Code: A Brief

Commentary), Bratislava, p. 403.

93 Agreement between the Slovak Republic and Registered Churches and Religious Societies regarding

Religious Education, published in the Collection of Laws under No. 395/2004.

94 Agreement between the Slovak Republic and Registered Churches and Religious Societies regarding

Religious Education, 395/2004, Article 2(7).

95 See the finding of the Constitutional Court of the Slovak Republic, III. ÚS 64/00-65, 31 January 2001.