no. 07-00-398/2023-02 date: 28.12.2023.

OPINION

The opinion was issued in the procedure regarding the complaint filed by several associations dealing with the protection of human rights (from now on: the complainants) against a social protection institution that provides temporary accommodation services for adults (from now on: the Institution), due to discrimination based on the health condition. In the complaint, it was stated that the Institution discriminates against potential users receiving treatment at the AA Psychiatric Illness Clinic, that is, it refuses to allow these persons access to its services. It was further stated that during the Coronavirus epidemic, the Institution was closed for the reception of new users and that after the epidemic began, it prescribed an additional condition for the reception of users in the form of the mandatory possession of a negative PCR test, and that this condition was not lifted even afterward. The users accommodated in the Institution “do not have the possibility of going outside” except in rare cases such as going for a specialist examination because in this Institution, the prescribed measures of mandatory isolation of the users when returning to the Institution are still in force. In the statement and the supplement, the Institution stated that it had adopted a Procedure on the behavior of employees and users to prevent and suppress illness from the Coronavirus, which was submitted for approval to the competent epidemiologist of the City Institute for Public Health, who requested that the proposed measures in the Procedure be tightened, and thus the isolation measure of three days in all the mentioned circumstances was introduced for the users by the competent epidemiologist. According to the statement, when the World Health Organization declared that the Coronavirus pandemic no longer represents a global emergency, the Institution immediately contacted the competent epidemiologist regarding the implementation of protective measures, after which they received an answer that the existing measures remain in force. In the statement, it was specified that the Institution does not a priori refuse to accommodate users who are being treated or have been treated at the AA Psychiatric Illness Clinic, but that persons who are psychiatric patients and who are “in a calm phase” are accepted at the accommodation, while persons who need to be introduced to therapy and a “calm phase”, are accepted for accommodation by the Institution accepts after the necessary health care in a health institution is provided. The Institution clarified that it provides only primary health care and does not have a psychiatrist and that in 2022, it received 17 requests for the accommodation of users who were being treated at the AA Clinic at that time, and that accommodation was approved for 13 of the mentioned number users, some of whom are still accommodated in the Institution. The Institution is “asking the Commissioner” to use their authority to appeal to the makers of the measures in question so that they reconsider their decision and relax or cancel them, which would certainly relieve the work of the Institution. Regarding the allegation from the complaint that the Institution was closed for the reception of new users in 2020 during the Coronavirus epidemic, the Commissioner stated that they sent a Recommendation of measures to the Government to improve the functioning of various support measures during the state of emergency and the imposed movement ban, by which it was recommended, among other things, that when placing a person in an institution, all institutions be given instructions regarding actions in the circumstances of a state of emergency, to ensure timely protection. As for the allegations in the complaint regarding the provisions of Art. 4 and 5 of the Rulebook on the reception, provision of services, and discharge of users of the Institution, the Commissioner noted that one of the associations – complainants already addressed the Commissioner in 2021 on this occasion, after which the Commissioner carried out an analysis, of which it informed the Association in letter no. 110-00-8/2021-02 of October 5, 2021. Regarding the allegation from the complaint that the Institution refuses to admit persons who are being treated or have been treated at the AA Clinic, the Commissioner, after analyzing all the evidence submitted by the parties to the procedure, determined that the Institution did not a priori refuse to admit users who were being treated or are treated at the AA Clinic. In connection with the allegation that the Institution, in its acts, prescribed measures to combat the Coronavirus in the form of a negative PCR test no older than 48 hours for new users and users returning from a non-covid health facility, as well as mandatory isolation, the Commissioner concluded that by prescribing such provisions within the Procedure, the right to free movement of the users of the Institution’s services is indirectly restricted, i.e. aggravated, because the user, every time they leave the premises of the Institution, will be forced to go to the isolation block or to be subjected to PCR testing. However, while the Institution implements the mentioned measures, it is necessary to point out that the prescription and implementation of the measures was done by order of the competent inspector of social protection, with the consent of the City Institute for Public Health epidemiologist. Upon inspection of the electronic letter sent by the City Inspector of Social Protection to the Acting Director of the Institution, as well as insight into the subsequent electronic communication of the Acting Director of the Institution and the competent epidemiologist of the City Institute for Public Health, it was determined that the Institution adopted all measures with prior expert opinion and consent of the epidemiologist, which were submitted to the City Secretariat for Social Protection, which then forwarded them to the City Headquarters for Emergency Situations for adoption. Therefore, in the specific case, the Institution acted following the received orders and guidelines of the City Inspector of Social Protection, who, following the provisions of the Law on Inspection Supervision and the Law on Social Protection, has the authority to carry out preventive supervision over the legality and regularity of the work of the Institution and to issue, in this regard, certain orders/guidelines. In relation to this, the Commissioner also took into account the fact that the Acting Director addressed the competent epidemiologist and the City Inspector of Social Protection on two occasions. The Institution cannot be responsible for the implementation of disputed measures because they were ordered by the competent epidemiologist and adopted by the competent city body, all according to the orders of the City Inspector of Social Protection, as the person who supervises the work of the Institution. On the other hand, the Commissioner points out that the mentioned measures make it difficult to exercise the right to the Institution’s services. Therefore, the Commissioner, using their comptences from Article 33, paragraph 1, point 9 of the Law on Prohibition of Discrimination, will inform the Ministry of Labor, Employment, Veterans and Social Affairs, the City Institute for Public Health, and the Secretariat for Social Protection with the opinion of the Commissioner and recommend measures to achieve equality and protection against discrimination of persons who are being accommodated or are already accommodated in the Institution. Also, the Commissioner, following the competences mentioned above, recommends the measure to the Institution to apply again to the authorities mentioned above with a request to alleviate the measures, especially those related to the obligation of PCR testing of the users and placing the users of the Institution in the isolation block when returning to the premises of the Institution.

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković