OPINION

The opinion was issued in the proceedings regarding the complaint filed by the Association AA against Bank BB, due to discrimination against refugees, asylum seekers, persons with an approved right to asylum and persons with subsidiary protection of citizens of Iran, Iraq, and Afghanistan, based on nationality and ethnic origin, as well as citizenships. In the complaint, it was stated that the employees of the BB Bank branch refused to establish a business relationship and open a foreign currency account for refugees and asylum seekers in the Republic of Serbia, because of their foreign origin, i.e. because they are citizens of Iran, Iraq and Afghanistan. In the statement and supplement to the statement, it was stated that during 2020 Bank BB did not conclude business relations (opening accounts) with natural persons originating from Iran, Iraq and Afghanistan, given the fact that the countries of Afghanistan, Iraq and Iran have strategic deficiencies in the system for preventing money laundering and financing of terrorism, according to the FATF classification, which is why the bank applies a stricter approach to the citizens of those countries, as high-risk, which is reflected in the application of enhanced actions and measures to get to know and monitor the party, in accordance with the Law on Prevention of Money Laundering and Financing of Terrorism. It was also stated that the internal acts of the bank prescribe stricter conditions in relation to the establishment of a business relationship with natural persons with domicile or residence in Iran, as well as with natural persons who, although residing in another country, were born in Iran or are citizens of Iran. During the procedure, the Commissioner, in accordance with Article 37, paragraph 1 of the Law on Prohibition of Discrimination, also requested a statement from the National Bank of Serbia in order to properly determine the factual situation. In its response, the National Bank of Serbia stated, among other things, that banks can establish a business relationship with persons in the status of asylum seekers or refugees, who fled from Iran, Afghanistan and Iraq, if the formal and material conditions established by the law and by-laws, which apply equally to all natural persons, are met, that the obligor (bank) is obliged to apply enhanced actions and measures, in accordance with the law and the bank’s internal acts, when establishing a business relationship with a party from a country that has strategic deficiencies in the system for preventing money laundering and financing of terrorism. In the course of the procedure, it was established that the fact that refugees or persons who are asylum seekers, and who are of origin (place of birth, citizenship) from countries that have strategic deficiencies in the system of preventing money laundering and financing of terrorism, according to the classification of intergovernmental bodies (e.g. FATF) does not exclude the possibility of the bank to establish a business relationship with these persons, but that the bank is obliged, in such cases, to apply enhanced actions and measures to get to know and monitor the party. Namely, the legal regulations in this area provide that a business relationship is not established only if the bank has assessed a high risk when establishing a business relationship, and could not apply enhanced actions and measures, in accordance with the law and the bank’s internal act. When deciding on this case, the Commissioner applied the rule on the redistribution of the burden of proof from Article 45, paragraph 2 of the Law on Prohibition of Discrimination, according to which the burden of proving that there was no violation of the principle of equal rights and obligations lies with the person against whom the complaint was filed. However, during this procedure, Bank BB did not submit evidence from which it could be determined that it refused for justified reasons to conclude a business relationship with persons who are asylum seekers and/or refugees, and who are citizens of Iran, Iraq, Afghanistan, or born in these countries, i.e. that it could not apply enhanced actions and measures to get to know and monitor the party, if there was a high risk when establishing a business relationship with these persons. The Commissioner stated that this standpoint was also confirmed by the statement of the National Bank of Serbia, in which, among other things, it was stated that it is not possible to exclude in advance the possibility of opening bank accounts for certain categories of persons solely on the basis of their citizenship, that is, the country of origin or nationality of a natural person, but rather that the refusal to establish a business relationship or the termination of that relationship is possible only if the bank has determined, after conducted justified analyses, that it is unable to apply certain enhanced actions and measures. For this reason, the Commissioner issued the opinion that by refusing to establish a business relationship (open a foreign currency account) with refugees and asylum seekers in the Republic of Serbia, who were born or are citizens of Iran, Iraq, and Afghanistan, without considering the fulfillment of the conditions in each specific case in accordance with the law, Bank BB violated the provisions of Article 6 of the Law on Prohibition of Discrimination. Along with the opinion, a recommendation was issued to Bank BB to, when considering the requests of asylum seekers and/or refugees in the Republic of Serbia, who were born in or are citizens of Iran, Iraq, and Afghanistan, assess in each specific case the fulfillment of the legal requirements for establishing a business relationship, without negative generalizations about persons based only on their citizenship or place (country) of birth, as well as to take care in the future not to violate regulations on the prohibition of discrimination in the scope of its tasks and activities.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković