No. 07-00-468/2019-02  date:  4. 2. 2020.

OPINION

The opinion was issued in the procedure regarding the complaint submitted by the president of the Association of Citizens “AA”, against the company “BB”. The complaint states, among other things, that the Association of Citizens “AA” organized the sixth festival of women’s friendship, and that on that occasion the president of the association, in June 2019, reserved a gala dinner in a restaurant on August 3, 2019, for festival participants. Furthermore, it is stated that on the morning of August 3, 2019, a photo from last year’s performance of the festival was published on social networks, on which the president of the “AA” association, together with two other activists, holds a rainbow flag with the word “PEACE” written in English language, as well as that the photo was “shared” on social networks with numerous insulting and threatening comments such as: “blood will be shed, there will be no gay parades” and others. In the complaint, the applicant pointed out that, in the afternoon of 3 August 2019, she received a telephone call from VV, who informed her that he was cancelling the previously arranged gala dinner in the restaurant for that day because “LGBT people were not allowed access there” and that, when she asked what would happen “if they still came to dinner”, he answered “that he will kick them out, that the restaurant is his private property and that he can do whatever he wants there”. The allegations of the complaint were confirmed by the statements of the witnesses who were present in June 2019 when the gala dinner in the restaurant was arranged, that is, when on August 3, 2019, the complainant was informed by phone that the dinner for festival participants was cancelled. The statement of the company “BB”, among other things, states that the president of the association, in June 2019, reserved a dinner “for about 70-80 medical doctors”, to be held in the restaurant on August 3, 2019, and that on that occasion the manager of the restaurant, GG, informed her that she is obliged to confirm her reservation at least 3-4 days before the scheduled date, by a written or oral notice. Furthermore, it was stated that information was “spread” on social networks that a “gay parade” would be held in the cities of DD and EE, and that on August 3, 2019, in the afternoon, a group of “hooligans” arrived at the restaurant, asked for information whether the participants in the “alleged gay parade” will come to the restaurant and threatened to “break all the inventory and demolish the restaurant if they come.” The statement pointed out that “the festival organizers failed to request protection from the Novi Pazar police for the dinner they organized,” which is why “the management assessed that the gathering of festival participants and their visit to the restaurant represented a high risk.” In this regard, according to the further allegations in the statement, VV informed the complainant by telephone about the “situation” and warned her that the restaurant did not have adequate security, and that they could not secure safe entry to the restaurant for festival participants, given that a group of “hooligans” is waiting in front of the restaurant. On that occasion, as further stated, she was told that “the provision of restaurant services is not a problem and that the participants of the festival will be admitted to the restaurant even though they did not confirm the reservation on time”, and that “given the overall situation they should decide whether to come at the scheduled dinner, primarily considering their personal safety and the safety of numerous other guests.” The statement further specified that the president of the association did not confirm the reservation of the dinner scheduled for August 3, 2019, which is why it was considered that the reservation was cancelled, and that she was “informed, as a natural person, and not as a representative of an organization or festival organizer that her announced guests, medical doctors, did not arrive to the scheduled dinner.” Having in mind the rule on redistribution and transfer of the burden of proof from Article 45 of the Law on Prohibition of Discrimination, the Commissioner analyzed whether the facts and evidence offered by the company “BB” provide sufficient grounds to conclude that on August 3, 2019, festival participants were not denied provision of services in the restaurant on the basis of their presumed personal characteristics, sexual orientation and gender identity. Based on the analysis of the statement, it was determined that the company “BB” made several contradictory and unclear allegations. Namely, it is unclear whether the dinner would have been held if the guests were medical doctors, as the restaurant management initially understood, as well as whether the reason for cancelling the dinner was the fact that the reservation was not confirmed in time, especially having in mind the allegations from the statement that regardless of that, the provision of restaurant services was not a problem. The statement also made it clear that the restaurant’s assessment was that it was a high-risk gathering, and that they were also aware of the content on social networks that characterized the festival as a gay parade. When taking a stand on this issue, the Commissioner also took notice of the newspaper article in the electronic newspaper “FF” from September 7, 2019, entitled “Lunch was cancelled in the restaurant after the rainbow flag was flown”, in which, among other things, a statement was communicated by the owner of a restaurant in which he “confirmed the cancellation of hospitality to the participants of the festival”. Having that in mind, as well as the testimonies of witnesses, who confirmed the allegations from the complaint, and by applying the rules on redistribution of the burden of proof, the Commissioner is of the opinion that “BB” did not provide evidence that the festival participants were denied services in the restaurant, on August 3, 2019, for any other, justified reason, but exclusively because of the presumed personal characteristics of the festival participants – sexual orientation and gender identity. Therefore, the Commissioner issued an opinion that such a denial of service violated the provisions of Article 6 in relation to Article 17 of the Law on Prohibition of Discrimination. The Commissioner recommended to the company “BB” to send a written apology to the president of the Association of Citizens “AA” for cancelling the dinner in the restaurant, and to take care in the future to adhere to the regulations on prohibition of discrimination within their regular work and activities.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković