Law on prohibition of discrimination discriminates sexual minorities in BiH
Bosnia and Herzegovina (BiH) is currently undergoing the process of integration into the European Union (EU). All member states of the EU, as well potential member states, including Bosnia and Herzegovina, are obliged to harmonize their national legislation fully with the EU law, which is particularly related to EU directives. However, the law on prohibition of discrimination in BIH is not responding to these standards.
Thursday, 14 October 2010
So far, a number of directives prohibiting discrimination on various grounds has been adopted in BiH, and they oblige member states to harmonize their national legislation with the principles of equal treatment and standards for protection envisaged by the anti-discrimination directives, which includes changes of various laws and regulation, rules in the field of administration, collective and individual work contracts, internal regulation in firms / companies, or rules relating self-employment and profession, as well as social insurance schemes.
-The role of the civil society
The Helsinki Committee for Human Rights in BiH presented the draft of the law against discrimination in BiH in September 2007, stating that the ‘’adoption of such legislation is important and useful as an instrument to prevent the widespread phenomenon of discrimination in our country and protect the human rights of the citizens of Bosnia and Herzegovina’’.
‘’It is also significant, because it would implement some of the directives of the European Union which would accelerate the process of approaching to this association and confirm the maturity of Bosnia and Herzegovina as a country’’, it is stated from Helsinki Committee for Human Rights in BiH – HCHR.
HCHR in BiH does not expect, with the adoption of this law, that discrimination in BiH will disappear overnight, but the adoption of this document will certainly contribute to its effective mitigation and prevention.
So after a two-year process of advocacy, drafting and consultations, the Law on Prohibition of Discrimination in Bosnia and Herzegovina was adopted last year in July. The initiative for a single legislation that would provide mechanisms for protection against discrimination, was launched by several civil society organizations in BiH, including HCHR, and additional 18 months were necessary for this law to be officially adopted.
Council Directive 2000/43/EC implementing the principle of equal treatment between persons, irrespective of their racial or ethnic origin and Council Directive 2000/78/EC establishing a framework for equal treatment in employment and occupation are key documents in the development of legislation on discrimination on the EU level and these directives have had a significant impact on the development of this Act.
Adoption of a unified law on the prohibition of discrimination in BiH included introduction of new concepts in a legal system of BiH. Prior to the adoption of this law, the instruments for the protection from discrimination were Human Rights Chamber for Bosnia and Herzegovina, which was closed in 2003, and the Constitutional Court of Bosnia and Herzegovina.
However, this Act expands the number of bodies that serve as protection from discrimination, and it transfers duties related to the prohibition of discrimination, to municipal levels of judicial authority as well.
-Sexual minorities discriminated by Law
Interreligious Council of BiH that represents Catholic, Islamic, Jewish, and Orthodox communities in BiH, was the first to respond in July last year to the adoption of this law seeking significant changes in the text that was adopted by the Council of Ministers, related to the institution of marriage.
Interreligious Council of BiH proposed amendments to protect marriage as institution of a man and a woman, because the proposed law would be legal basis for someone to change the Family Law in near future since it is indicated that all the laws will have to be aligned with this Act.
Imam Ekrem Tucakovic, Chief of the Information Office of the Islamic Community in BiH, said that the proposed legislation is unacceptable because it destroys institute of marriage, which the Islamic community does not want to allow. He pointed out that proponents of the law must know that the Islamic community will never accept the legalization of same-sex marriages.
"We want to preserve the institute of marriage as holy matrimony of a man and a woman. Any other formulation of a marriage is contrary to Islam and we cannot accept it", said Tucakovic.
Vanja Jovanovic, the priest of Serbian Orthodox Church in BiH, concluded that if their amendment to this clause is not to be accepted, they as a religious community, could be punished with five thousands Euros: "Disputable is the legal clause that allows marriage to persons of the same sex. All other laws will have to be harmonized with the adopted Act on Prohibition of Discrimination in BiH, which opens the way for the legalization of same-sex marriages. So with the adoption of this law, we could be punished with 5 000 Euros for propagating the principles of faith that sees marriage as an institution of men and women. This is nonsense because we will be in a position where we protect the rights of one, homosexuals, and discriminate the rights of others, believers’’.
Imam Ekrem Tucakovic, also reckons that religious communities could be punished for promoting moral principles.
‘’Anyone who tells negatively about homosexuality or change of sex, and anyone who would feel he or she was discriminated by those standpoints, may initiate misdemeanor proceedings. On the other side, we as religious communities, speak only about harmonious moral principles as it is required by our faith, and that is why we believe that there is a collision and legal uncertainty for us in this Act’’, concluded Kovacevic.
-The Law is not in line with EU standards
According to the director of the Association Q, organization engaged in the promotion and protection of culture, identity and human rights of ‘’queer’’ people in BiH, Svetlana Djurkovic, the law does not mention sexual orientation and gender identity nor same-sex marriage, but it regulates the ban on discrimination on any ground in Bosnia.
Ms. Djurkovic also adds that the Law on Prohibition of Discrimination is just ‘’waste of time and effort’’, because this kind of Act is not in line with EU standards, and consequently does not contribute to nor it accelerates the process of BiH accession to the EU because of its discriminatory amendments.
‘’If we are to enter the EU, we will have to make changes of this Act’’, concluded Ms. Djurkovic.
However, if the Act does not change, the second possibility for ‘’queer’’ people in BiH is to address to the European Court for Human Rights in Strasbourg, and raise a complaint against BiH, since the existing state laws do not protect their rights in a proper manner.
Same-sex marriages are recognized by Sweden, the Netherlands, United Kingdom, Spain, Denmark, and Norway, while in the countries of the region, it is recognized the right to partnerships.
‘’This means that if someone lives three years in partnership, and he or she can prove that, then he / she is allowed to use inheritance after the death of his / her life partner’’, explained Djurkovic.