The Commissioner for the Protection of Equality responded to the Autonomous Women's Centre in reference to its public call to file a lawsuit in her own name and on her own initiative for protection against discrimination, in accordance with her powers (Article 46 of the Law on Prohibition of Discrimination). In her statement, the Commissioner informs about the content of Art. 33, 40, 43 and 46 of the Law on Prohibition of Discrimination, Art. 34 and 40 of the Rules of Procedure of the Commissioner for the Protection of Equality, as well as the criminal offense 317 of the Criminal Code. Judging by the content of the statement, we will have to wait for a long time before the Commissioner files lawsuits for discrimination, in her own name and on her own initiative.
Regarding the Commissioner's reference to the Rules of Procedure, it is important to emphasize that although this internal act allows for the possibility of filing a lawsuit in cases where discrimination is found in the complaint procedure, the Rules of Procedure cannot and do not restrict the Commissioner in exercising her powers. The only restriction that the Law on Prohibition of Discrimination prescribes in connection with the filing of a lawsuit for protection against discrimination by the Commissioner is that "proceedings before the Court on the same matter have not already been initiated or finalized". Therefore, the Commissioner is not bound to act upon the complaint, and can therefore initiate a lawsuit for protection against discrimination if circumstances require a reaction – which was the case!
Also, the fact that criminal charges were filed on the occasion of the aforementioned hate speech by Dragoslav Bokan, does not prevent the Commissioner from initiating proceedings on the lawsuit. Even if the initiation of criminal proceedings before the court in this case could be a restriction to the Commissioner for filing a lawsuit, neither the public, and obviously the Commissioner neither, still have no information on whether this has happened. Therefore, in this case, the Commissioner is referring to a hypothetical situation - that the timely reaction of the Prosecution and the Court would contribute to sending an adequate message - which is obviously still uncertain. In our opinion, that is an additional reason for the Commissioner to react, instead of justifying her inaction in this way.
The AWC is not surprised by this response of the Commissioner for the Protection of Equality. On the contrary, such and similar responses have already been received (to earlier complaints submitted by the AWC). We have written about this on several occasions, most recently in the ALARM Report on the implementation of Chapter 23, which shows the number of cases, complaints, suspended or rejected proceedings and proceedings for which an opinion was issued before the Commissioner for Equality for the period 2016-2020. In less than 10% of cases (and in 2020 only 4.3% of complaints) the Commissioner confirmed discrimination.
The number of cases before the courts (misdemeanour or civil) and the number of criminal charges initiated by the Commissioner in her own name and on her own initiative is extremely small - from one to three proceedings per year, which we wrote about in the Institutional Barometer 2.0. Finally, due to the frequent reference of the Commissioner to the restrictions on the procedure related to Art. 36 of the Law on Prohibition of Discrimination, the AWC submitted a proposal on behalf of the coalition prEUgovor during the public debate and consideration of the proposed amendments to the Law to specify that article, which was rejected without explanation.
The answer of the Commissioner for the Protection of Equality can be seen HERE.
The public call of the Commissioner for the Protection of Equality can be seen HERE.
ALARM report on the coalition's pre-agreement (May 2021, p. 68) can be seen HERE.
Institutional Barometer 2.0 of the Coalition Agreement (November 2019, pp. 105-109) can be seen HERE.
The coalition's proposal for amendments to the Law on Prohibition of Discrimination can be seen HERE.