The NGO sector in Bosnia and Herzegovina has launched an initiative for drafting of an anti-discrimination law in this country. Adoption of the anti-discrimination law is not only an obligation of Bosnia and Herzegovina by international standards for the purpose of joining the European integration, but also a necessity and an urgent task of the general public of Bosnia and Herzegovina.  (17-APR-06)

Written by HRH / Mirsad Pandzic.

The Helsinki Committee for Human Rights in Bosnia and Herzegovina will implement the project of drafting of anti-discrimination legislation, with financial support of the Swedish Helsinki Committee. Drafting of the law is a reflection of a necessity, as expressed by local non-governmental organizations, but also a requirement of the European Commission, as stated in its Recommendations on anti-discrimination legislation.

Following the European criteria, the Helsinki Committee has adopted its own Recommendations originating from the project “What does Bosnia and Herzegovina need to achieve in the field of human rights in order to meet the EU criteria?”, which makes the whole activity on drafting of this law a contribution of the Helsinki Committee of Bosnia and Herzegovina and the non-governmental sector to the overall work on European integration.

Reports on discrimination
All reports on the state of human rights, particularly the rights of vulnerable social groups in Bosnia and Herzegovina, such as women, national and ethnic minorities, the elderly, youth, persons with disabilities, persons of different political affiliation from the ruling parties, persons of different sexual orientation, etc., demonstrate massive discrimination practices against these groups.

Hence the need for adoption of legislation against discrimination in Bosnia and Herzegovina. That is not only an international requirement from Bosnia and Herzegovina for accession to the European integration, but also a necessity and an urgent need of the general public of Bosnia and Herzegovina.

NGO on anti-discrimination
The activities of non-governmental sector on important tasks in the process of legislation drafting started in December 2005. A Working Group was formed and tasked with sociological, political, social-psychological and legislative analysis of discrimination in the specific context of the society of Bosnia and Herzegovina, and articulating proposals to the government on an anti-discrimination framework, which would become one of the key instruments in fight against discrimination.

Apart from general activities as part drafting of a general anti-discrimination framework, the Working Group will try to specifically analyse the discriminatory consequences of the constitutional organization of Bosnia and Herzegovina, especially in the light of (un)equal opportunities of the “new minorities” in the context of political-territorial and ethnic division of Bosnia and Herzegovina and dominance of ethno-national elites in this region. In this sense, it is necessary to discuss discrimination against members of these minorities, particularly in the sense of their (im)possibility to equally participate in public, political, economic, social and cultural life, and to equally participate in decision-making of important social and political decisions.

The Working Group will also analyse the legislative vacuum that has originated from incrimination of the “spread of racial and national hatred”, which is directly reflected on the unpunished use of hate speech in the public of Bosnia and Herzegovina, and is one of the key instruments of indirect discrimination as such.

Key items
The key items of the future law proposal are identified. Among other things, the Working Group will propose sanctions against acts of discrimination, hate speech, harassment, as well as instruments for compulsory court safeguards against all types of discrimination. The law will propose establishment of a body (most probably a special and independent one), which would have the powers of protection of citizens against all types of discrimination.

The issue of burden of proof will be dealt with specifically, as the existing legislation and practice suggest that the burden of proof still lies with the victim of discrimination, not the party that has acted discriminatory. As it should be widely known, according to international and European standards, the burden of proof should lie with the party that has acted discriminatory. Our legislative authorities have found this position very difficult to accept, which was demonstrated during adoption of the Gender Equality Law of Bosnia and Herzegovina.

Implementation
Based on experiences we have had so far, which were extremely bad experiences with implementation of anti-discrimination legislation (e.g. the Gender Equality Law), the Working Group has considered that it would be very important to establish state bodies that would be in charge of implementation of this law and propose sanctions against their inaction, as well as sanctions for those who are flagrantly violating and are failing to respect this law. This has so far not been the legislative practice in Bosnia and Herzegovina, which made good laws become only a piece of paper. We sincerely hope that this will not be the case with the future law against discrimination in Bosnia and Herzegovina.