OPINION

The opinion was issued in the proceedings regarding the complaints filed by AA, a lawyer from … on behalf of BB against the Tourist Organization … (hereinafter: TO …), the acting director VV and the president of the competition commission GG, due to discrimination in the field of employment, based on national affiliation or ethnic origin as a personal characteristic. In the complaints, among other things, it was stated that the TO … organized a public competition to fill the executive position – organizer for the development and promotion of tourist products, to which the complainant applied, and that in the competition preference was given to an equally qualified candidate because she is a member of a certain national minority. She further stated that the TO … in its decision on employment referred to the application of Article 58 of the Law on Employees in Public Services, i.e. the application of a special (affirmative) measure in employment, even though candidates were not given the opportunity in the procedure to declare their nationality, as well as without carrying out the actions required by law in these cases. She pointed out that the acting director, in her decision to reject the objection, stated that it is a well-known fact that the candidate who is being employed is “from a respectable Bosniak family” and that there was no need to collect data on the nationality of the candidates. In the statement of the acting director of the TO …, DD, who was in the meantime appointed to the position of acting director instead of the previous acting director VV, it was stated that both candidates fully satisfied the selection criteria, but that preference was given to the second candidate, who primarily has previous work experience in the TO …, and also because she is a member of a national minority, who at the time of the decision was less represented in the TO …, as well as that by an insight in the documentation of the TO … “it can be seen that at the time of the announcement of the competition, there were no members of the national minority”. In addition, in response to the Commissioner’s request for a statement, the acting director stated that the public invitation did not indicate that a special (affirmative) measure would be applied in the implementation of the competition, as well as that at the level of the Municipality … and TO … there are no specific acts related to the need to apply an affirmative measure. Bearing in mind that in the procedure it was established that the Public tender was announced by the TO …, and that in the meantime VV is not the responsible person in this organization, the procedure was continued against the TO … . In the complaint procedure, it was necessary to determine whether the TO … put one candidate in a privileged position compared to another, based on any presumed or real personal characteristic, or whether giving priority to a candidate based on her nationality represented the application of a special (affirmative) measure, in which case the Constitution and the law allow giving priority. For the deliberation of this case, it is important to point out that the application of a special (affirmative) measure is an exception to the rule, that is, an exception to the principle of equality prescribed by both the Constitution in Article 21, paragraph 4, and the Law on Prohibition of Discrimination, in Article 14. Bearing in mind that special measures are an exception to the principle of equality, they must be carefully implemented in the manner and procedure prescribed by law. The Commissioner first notes that if the special measure was implemented in accordance with the law, it cannot constitute an act of discrimination. However, if the special measure is not applied in accordance with the law, it may represent an unjustified giving of priority, that is, privileging a person or a group of persons based on a certain personal characteristic. After the procedure, it was established that, according to the special rule on the redistribution of the burden of proof, prescribed in Article 45, paragraph 2 of the Law on Prohibition of Discrimination, the complainant made an act of discrimination probable. On the other hand, with the statement the TO …, no evidence was submitted that would indicate that giving priority to the candidate who was hired in relation to the candidate who filed the complaints represents the application of a special (affirmative) measure, in which case giving priority would be justified. Upon insight into the Public competition, it was established that the public invitation did not include a note that in the case of equally qualified candidates, priority will be given to a member of a national minority, which the TO … was obliged to do in accordance with the law. Also, from the statement it is indisputable that at the level of the Municipality … and the TO … there are no specific acts that refer to the need to apply the affirmative measure. The Commissioner further stated in the procedure that in accordance with the Constitution and the law, the nationality of each individual cannot be arbitrarily interpreted or assumed, as was done in the decision rejecting the complaint of the complainant. Bearing in mind the above, the Commissioner issued the opinion that the TO… violated the provisions of Article 6 of the Law on Prohibition of Discrimination, by privileging an equally qualified candidate over another on the basis of an assumed personal characteristic – belonging to a national minority, without implementing the prescribed procedure for the application of a special (affirmative) measure in accordance with the law. The Commissioner recommended the TO … to remove the consequences of discriminatory treatment towards the person on whose behalf the complaint was submitted; to provide equal treatment to all candidates during the Public competition for the selection of candidates for employment in the TO … or if there is a need to apply a special (affirmative) measure, implement this measure in accordance with the law, as well as that in the future its actions do not violate the regulations on the prohibition of discrimination.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković