No. 07-00-564/2018-02 Date: 8 November 2018

OPINION

This Opinion was issued in a procedure following a complaint filed by association R.i.c. from Belgrade against the Office for Human and Minority Rights due to the wording of a public call which the Office annunced on 22 January 2018 as part of program “Implementation of anti-discrimination policies in the Republic of Serbia for 2018“. In the complaint was, inter alia, stated that the wording of the public call set out the maximum value of approved funds per individual project and that funds for projects “targeted at women, elderly people, children, the young and persons with disabilities“ may not exceed an amount of RSD 1,000,000.00, whereas amounts “for projects targeted at refugees and internally displaced persons and LGBTI persons“ may not exceed an amount of RSD 250,000.00. The complainant believes that by allocating a smaller maximum amount in the public call to LGBTI persons puts LGBTI persons in an unequal position and that there is “no rational explanation“ for this. The Office for Human and Minority Rights, inter alia, stated that the decision of the Office for Human and Minority Rights regarding LGBTI persons in the specific case may be better understood if the framework of the entire concept of project funding via a public call conducted by the Office for Human and Minority Rights is expanded. Namely, funds in the amount of 18 million RSD were allocated to the projects aimed at promoting the rights of the LGBTI population, which were implemented in 2016 and 2017, through public calls which were funded via grants, which is more than the total annual value of budget funds alllocated to the execution of public calls which support activities directed towards the improvement of the position of all vulnerable social groups for which a total of 16 million RSD were allocated as part of program “Implemenation of anti-discrimination policies in the Republic of Serbia for 2018“. The procedure involved an analysis of allegations, statements and submitted evidence which determined that over 18 million RSD were allocated to the support of the LGBTI population through public calls conducted in 2016 and 2017, which is more than total annual value of budget funds allocated to the execution of public calls which support activities direced towards the improvement of the position of all vulnerable social groups within program “ Implemenation of anti-discrimination policies in the Republic of Serbia for 2018“ in the amount of 16 million RSD. The European Court for Human Rights determined treatment standards in this field in a number of discrimination-related cases. Thus, when different treatment of two analogous groups is determined, the burden of providing evidence is shifted to the state which needs to prove that different treatment is objectively or reasonably justified. Therefore, the Commissioner for the Protection of Equality, in the specific case, asked for a statement of the Office for Human and Minority Rights regarding allegations related to the unequal limits of funds allocated to different social groups. Furthermore, according to the opinion of the European Court for Human Rights, different treatment may be objectively and reasonably justified when it is directed towards the achievemenet of a legitimate goal and when there is proportionality between funds used and the goal that is to be achieved. According to the jurisprudence of the European Court when assessing proprotionality, the state is allowed to make “free assessment“ which depends on the circumstances of the case and the case itself. In this specific case, by proving that in the period preceding the announcement of the relevant public call the Office for Human and Minority Rights allocated over 18 million RSD to the associations for the protection of LGBTI rights and members of the LGBTI population as end beneficiaries, and having in mind that with the disputable public call from 2018 it again focused on LGBTI persons and thier associations, the Commissioner for the Protection of Equality is of an opinion that the different treatment determined by the Public call for association projects for purpose of improving and protecting human rights within program “Implementation of anti-discrimination policies in the Republic of Serbia for 2018“ is objectively and reasonably justified. In view of the above stated, the Commissioner for the Protection of Equality is of an opinion that the Office for Human and Minority Rights did not violate provisions of the Anti-Discrimination Law with the annuncement of the Public call for asssociation projects for purpose of improving and protecting human rights within program „Implementation of anti-discrimination policies in the Republic of Serbia for 2018“.