Court Protection from Discrimination

Everyone has the right on court protection. Every human being and every organization exposed to discrimination have the right on protection. The condition for protection is neither the fact that the discrimination victim is a local citizen, nor any other characteristic of the victim (residence or seat in Serbia, right to vote in Serbia, paying taxes in Serbia, carrying out business activities in Serbia, age, legal capacity).

Protection is required from the court. When it establishes that the legal conditions for protection are met, the court is obliged to provide protection to the discrimination victim. Protection is first required from the basic court. If the discrimination victim deems that he or she was unwarrantedly denied protection by the basic court, he or she appeals to the court of appeals on the territory where the basic court that issued the first instance verdict is located. The court of appeals issues a verdict that confirms the verdict of the basic court or modifies it, or it issues a decision to reject the appeal or to cancel the verdict of the basic court, sending the case back to the basic court for re-examination and a new verdict. In special circumstances, it is permitted to review a second instance verdict, when it is necessary to examine the legal issues of general interest or harmonize jurisprudence, in line with the review permissibility assessment given by the court of appeals, or when a new interpretation of law is needed. The Supreme Cassation Court makes decisions on reviews.

Protection is required by means of a lawsuit. By means of a lawsuit, a discrimination victim requires protection from the basic court. When the discrimination victim is a human being, he or she can freely choose whether they will file their lawsuit in the basic court in their place of residence, or in the basic court in the place of residence of the person who committed the act of discrimination, i.e. in the place where the seat of the organization that committed the act of discrimination is located. When the discrimination victim is as organization, it can choose whether it will file its lawsuit in the basic court in the place where its seat is located, or in the basic court in the place of residence of the person who committed the act of discrimination, i.e. in the place where the seat of the organization that committed the act of discrimination is located.

Protection can be required by the discrimination victim and other persons. The discrimination victim enjoys the protection from discrimination. However, the victim does not have to be the one to require protection. The lawsuit may be filed by the Commissioner for Protection of Equality, as well as by an organization dealing with protection of human rights or rights of groups of which the victim is a member (for instance, associations or non-governmental organizations that deal with protection of human rights, i.e. rights of particular groups of persons, such as the Roma, the LGBT population, persons with disabilities, etc.), and by voluntary investigators of discrimination.

If, in a specific case, the discrimination victim is only one man or one organization, then the organization wishing to file a lawsuit for protection of the discrimination victim must obtain the approval of the victim prior to filing the lawsuit. The approval must be in written form, that is to say it must be signed.

Discrimination victims have the right on all court protection they may need. Discrimination victims, or any other persons that may ask for protection of discrimination victims, choose the type of protection they require from the court. Several types of lawsuits on the ground of discrimination are available. In addition to the final protection which is required by means of lawsuit, temporary protection may be required as well, which is provided by way of a temporary measure before the proceeding is over, or even before the lawsuit is filed. In addition to protection that consists of preventing possible discrimination from happening (preventive protection), which is required by means of a lawsuit for non-action, there is also protection from discrimination that already did happen (reactive protection) which is required by means of a lawsuit for rectifying discrimination, a lawsuit for establishing of discrimination, and a lawsuit for reparation of damage. There are also forms of additional protection – issuing of a court penalty and disclosure of a verdict.

Lawsuit for prevention of discrimination. This lawsuit is filed with the aim to prevent discrimination. Protection may be required as long as there is a risk that an act of discrimination may happen, continue or repeat itself. If the lawsuit is filed with the aim to prevent the discriminator from committing an act that is about to happen and that would be discriminatory in nature, then the court is required to forbid the discriminator to, for instance, display a sign that discriminates against people on the ground of a personal characteristic (e.g. “No Roma allowed”), or as another example, to forbid the discriminator to open a call for job candidates with discriminatory requirements (e.g. a candidate must not be homosexual). If the lawsuit is filed with the aim to prevent the discriminator from continuing to commit an act of discrimination that he or she is already committing and that is still ongoing, then the court is required to forbid the discriminator, for instance, to keep on advertizing the discriminatory call for candidates that has been advertized in a daily newspaper for days, or to stop preventing customers from shopping in a store owned by an Albanian family. If a lawsuit for non-action is filed with the aim to prevent the discriminator to repeat an already committed discriminatory act, then the court is required to forbid the discriminator, for instance, to refuse to provide medical services to a person with disability, or to deny access to a night club to a Roma person.

Lawsuit for rectifying the state of discrimination. If, by committing an act, the discriminator created a state of discrimination that is still ongoing, the discrimination victim may, as long as the discrimination state is ongoing, ask the discriminator to commit another, different act than the one committed, of which the aim will be to rectify the ongoing state of discrimination that was created. For instance, such act could be to remove the posters that he or she has posted which called for boycott of a certain store on the grounds of the owner’s nationality, to remove an architectural barrier that prevents persons with disabilities from accessing a building, or to take out a discriminatory clause from the open call for job candidates. While a lawsuit for non-action requires from the discriminator to refrain from committing an act (or to continue it or repeat it), this particular lawsuit always requires from the discriminator to commit a new act that can rectify the previously created state of discrimination. A state of discrimination is not rectified by the sheer fact that the discriminator is forbidden (in line with the lawsuit for non-action) to continue or repeat a discriminatory act. For instance, the ban to open calls for job candidates with discriminatory clauses in the future is not the same as the order to cancel such call, or the ban to stop denying access to Roma is not the same as the order to remove the displayed sign “No Roma allowed”.

Lawsuit for establishing of discrimination. Particularly, in situations when the discriminator believes to have the right to commit a discriminatory act or to create or maintain a state of discrimination, the discrimination victim may ask the court to establish whether the discriminator has committed an act of prohibited discrimination against him or her, i.e. whether the discriminator has violated his or her right on not being discriminated against. For instance, the victim may ask the court to establish whether he or she was denied access to a supermarket because he or she is Roma, whether the discriminator illegally set religion as a condition for employment, or whether he or she is being boycotted on account of his or her religion. If discrimination is committed by a general act of an organization (such as the statute or the rules of procedure, for instance), the protection should not be required by means of this lawsuit in a court proceeding, but the examination of constitutionality of the general act by the Constitutional Court should be required.

Lawsuit for reparation of damage caused by discrimination. Discrimination per se does not constitute damage yet. For discrimination to happen, damage does not necessarily need to occur, and it doesn’t need to be the discriminator’s fault. But if damage does occur, and if it is the discriminator’s fault, discrimination victim has the right to be reimbursed by the discriminator for all the damage that he or she has suffered, including both tangible (property damage) and intangible (non-property damage). Discrimination victim suffers tangible damage if, down to discriminator’s actions, the number or the value of his or her property rights (i.e. rights that can be expressed in money) decreases (so-called real damage), or if the number or the value of such rights does not increase (so-called lost opportunity). For instance, a store owner was exposed to discrimination, which resulted in a decreased turnover or inability to receive goods from his supplier, which then forced him to purchase goods from another supplier at a higher price, or made him accountable for damage caused to his creditors if he failed to find another supplier. Or, a person wasn’t able to get employed due to a discriminatory act, which resulted in that person not having a salary. Or, a discrimination victim had to hire an attorney and pay for the costs with the aim to realize his or her right on freedom from discrimination. Or, a person was denied medical services on discriminatory grounds, which resulted in a serious illness leading to more costs. Or, a discrimination victim had to change his or her place of residence, which imposed additional costs. Intangible damage consists of emotional pain, physical pain or fear suffered on account of a discriminatory act. Discrimination victim may ask for an apology, for the discriminatory statement to be taken back, or for a certain amount of money.

Combination of several lawsuits. If, for any reason, the victim of discrimination is not interested to seek other forms of protection by means of other types of lawsuits, he or she will opt for filing a lawsuit for establishing of discrimination, i.e. for establishing the fact that the sued party does not have the right to commit the act that served as the motive for lawsuit, or to maintain the state caused by his or her act. However, when the victim is not satisfied by mere establishing of discrimination by the court, he or she will file another type of lawsuit (for non-action, rectifying of discrimination or reparation of damage). The lawsuit for establishing of discrimination cannot be combined with any of these lawsuits. Namely, if any of these lawsuits are filed, the court will have to start by establishing discrimination, because only if discrimination did occur, the prosecuted party may be forbidden to commit an act or continue with committing an act, or ordered to undertake an action or to reimburse the damage to the victim. The demands presented in a lawsuit for non-action, a lawsuit for rectifying of discrimination and a lawsuit for reparation of damage may be merged into a single lawsuit (which will, for instance, ask the discriminator to remove an architectural barrier for persons with disabilities, forbid him or her to repost the barrier in the future, and order him or her to reimburse the damage caused by the architectural barrier). Discrimination victims choose whether they will include all these requests in their lawsuit, or only some that they will select.

Request issuing of a temporary measure. When there is probability that the discrimination victim has the right to ask the discriminator to refrain from the discriminatory act, to rectify the state caused by the discriminatory act or to reimburse the damage caused by the discriminatory act, and when it is also probable that realization of the victim’s right at a later stage would be hindered or significantly more difficult – then the discrimination victim may ask the court to issue a temporary ban to the discriminator, prohibiting him or her to commit, continue or repeat a discriminatory act. The court may also temporarily order the discriminator to undertake an action with the aim to rectify discrimination, or to behave in a certain manner with the purpose to secure the victim’s request for reparation of damage. The discrimination victim may file the request for issuing of a temporary measure along with the lawsuit, as well as after filing the lawsuit, but not before filing it. The temporary measure issued by the court is valid until an official verdict is made at the latest. Given that this is not a permanent ban or order, the victim will fully realize his or her right on protection only if the court makes the same official verdict. If the discriminator does not act in line with the verdict, the victim may ask the executive court to forcedly enforce the verdict. However, even after the official verdict, as long as the verdict is not enforced, the discrimination victim may ask for a temporary measure, for instance, to prohibit the discriminator to alienate his or her property, if by alienating property he or she would hinder, obstruct or jeopardize the victim’s right on reparation of damage. The court will also issue a temporary measure when such a measure seems necessary to prevent the use of force as a form of discrimination or force leading to discrimination, or to prevent irreparable damage caused by discrimination.

Request to issue a court penalty to the discriminator. When there are indicators that the discriminator will not be willing to act in line with the verdict or the temporary measure on account of discrimination, which means that he or she will not honor the ban to commit discriminatory acts or the order to rectify discrimination, then the discrimination victim may, in the lawsuit for non-action or for rectifying of discrimination, or in the request for the temporary measure for non-action or for rectifying of discrimination, also ask the court to threaten the discriminator that he or she will have to pay a certain temporary monetary fee to the victim, if he or she failed to act in line with the verdict or the temporary measure. This fee is not reparation of damage, and it is to be paid regardless of the fact whether the discriminatory act has caused damage or not. The discrimination victim ay ask the court to issue court penalty by means of a court decision, or earlier by means of a temporary measure, or when the official verdict is made, until the moment when the victim asks for forced enforcement of the verdict. The court penalty raises the efficiency of protection: by introducing the possibility of having to pay the monetary fee, the discriminator is exposed to additional pressure to meet the main obligation (to refrain from committing a discriminatory act, i.e. to rectify discrimination) so that he or she do not have to meet the additional obligation as well.

Request to disclose the verdict against the discriminator. If the discriminatory act was committed in public (through newspapers, television, radio, billboards, at a political event, at a stadium, etc.), the discrimination victim may ask the court to order the discriminator to publish the verdict, partially or completely, at his or her own expense. The verdict in question is made against the discriminator on account of a lawsuit for non-action, a lawsuit for rectifying of discrimination, or a lawsuit for reparation of damage.

Evidence in court. Regardless of the type of lawsuit that was submitted, it is up to the discrimination victim (or another authorized prosecutor) to prove to the court that the sued party has committed the act for which he or she is being sued. With that regard, it is possible to propose and take into consideration the statement of the so-called discrimination investigator. A discrimination investigator is every person who got involved in a situation directly and personally, with the aim to unswervingly verify whether the prohibition of discrimination is violated in this situation (for instance, a Roma or a person accompanying the Roma going to a night club that is rumored to deny access to Roma; or a person with disability or a person accompanying the person with disability going to a dentist rumored to refuse patients with disabilities because treating them takes more time, etc.).
Regardless of the type of lawsuit that was submitted, if the discrimination victim presents as probable the fact that he or she was treated worse than others because of a personal characteristic, then it is assumed the principle of equality, i.e. of equal rights and obligations has been violated. This means that it is up to the discriminator to prove that he or she did not violate the principle of equality, i.e. of equal rights and obligations by committing a discriminatory act.
Regardless of the type of lawsuit that was submitted, the discrimination victim never has to prove that he or she has legal interest for protection, or to state why he or she asks for protection.

If the court determined that an act of direct discrimination has been committed or it is undisputable between the parties, the defendant cannot be released from liability by proving that he/she is not guilty.

If the plaintiff makes it probable that the defendant committed an act of discrimination, the burden of proving that as a result of that act there was no violation of the principle of equality, i.e. the principle of equal rights and obligations shall be borne/incurred by the defendant.

Each party may use the data contained in the civil register (vital records) and administrative registers to prove the facts in respect of which it bears the burden of proof.
Only in case of a lawsuit for reparation of damage it is important that the discriminator is guilty and that the discrimination victim has suffered damage on account of discrimination. But even in this case, it is not up to the discrimination victim to prove the guilt of the discriminator. Namely, the law sees every discriminator proven to have committed a discriminatory act that caused damage as guilty, so it is up to him or her to prove that he or she is not guilty. However, the discriminator cannot prove that he or she is not guilty if he or she has caused damage by committing an act of direct discrimination (because in that case the law sees discrimination as inarguable). When asking for reparation of damage, the discrimination victim proves that he or she has suffered damage and the nature of said damage, that the sued party has committed a discriminatory act, and that the damage was caused by the discriminatory act, which means that the type of damage that he or she has suffered usually occurs when such discriminatory act is committed.
In case of a lawsuit for non-action pertaining to a discriminatory act, the court will provide protection only if, in the moment when the lawsuit is filed, there is a tangible and serious risk that the discriminatory act will occur, continue or repeat itself. The court evaluates such risk in each particular case, taking into consideration the specific circumstances. For instance, if it is proved that the sued party has already committed such discriminatory acts before, or if the act is still ongoing, the court will deem that there is the risk of repetition or continuation. This means that the sued party will be obliged to prove specific facts so that the court can acknowledge that the risk of discrimination is gone.
When asking from the court to issue a temporary measure, the discrimination victim must present as probable the validity of his or her request, as well as the risk that without the temporary measure the realization of the victim’s request at a later stage would be hindered or significantly more difficult. This is not necessary if the temporary measure would not significantly burden the discriminator. When asking from the court to issue a temporary measure pertaining to the request for reparation of damage, the discrimination victim must present as probable the fact that at a later stage, i.e. during an executive procedure that he or she would initiate, he or she will be unable to receive a damage reimbursement if the temporary measure is not immediately issued. This is because there may be a concrete risk that the discriminator can, in the mean time, alienate the property that would serve as the asset for payment of the victim’s right on reparation of damage in the executive procedure, decrease the value of his or her property, burden the property with rights of third parties thus hindering the enforcement, hide the property, etc.
In order for the court to issue a court penalty to the discriminator, the discrimination victim must present as probable the fact that the discriminator will not act in line with the verdict, i.e. with the temporary measure. The court evaluates such risk in each particular case, taking into consideration the specific circumstances. The court will particularly bear in mind if the discriminator’s behavior so far indicated such a possibility.

Urgent action of the court. The court must decide on issuing a temporary measure without delay, at the latest within three days since the request was received. However, the court also must act urgently with regard to lawsuits for discrimination. This means that the court must undertake actions without delay, i.e. give advantage to these cases in comparison to cases that are not deemed as urgent, and undertake necessary actions by spending no more time than it is needed. If a judge neglects the legal obligation of urgent action, the discrimination victim may address the president of the court who is obliged to look after the legality of the court’s work. Neglecting of the obligation of urgent action is considered as negligent behavior of the judge, which may lead to dismissal from duty.

Professor Vladimir Vodelinic, PhD

Civil-legal protection