Croatia: Anti-discrimination legislation, including implementation mechanisms and responsible authorities; effectiveness, particularly in addressing discrimination based on race or ethnicity (2012-June 2014)

1. Overview of Anti-discrimination Legislation

Sources indicate that Croatia's Anti-discrimination Act [ADA] came into force on 1 January 2009 (European Network 2013, 5; COE 25 Sept. 2012, 13; Croatia 2009, Art. 31). The legislation prohibits discrimination "on the grounds of race or ethnic affiliation or colour, gender, language, religion, political or other belief, national or social origin, property, trade union membership, education, social status, marital or family status, age, health condition, disability, genetic heritage, native identity, expression or sexual orientation" (ibid., Art. 1). The legislation provides protection against both direct and indirect discrimination, harassment, sexual harassment, encouragement to discrimination, segregation, multiple discrimination, and victimization (Croatia 2009, Art. 2-7). The legislation protects against discrimination in the following fields: work; education; social security and social welfare; health; judiciary and administration; housing; public information and media; access to goods and services; membership in trade unions, NGOs, political parties and other organizations; and access to culture and art (Croatia 2009, Art. 8). A copy of the Anti-discrimination Act is attached to this Response.

2. Role of Ombudsman Office

The Ombudsman's Office is the agency responsible for the implementation of the Anti-discrimination Act (CMS 6 June 2014; European Network 2013, 67; COE 25 Sept. 2012, 16). The activities of the Ombudsman's Office are addressed in Article 12(2) of the legislation as follows:

Within the scope of his/her work, the Ombudsman shall:

Receive reports of all natural and legal persons referred to in Article 10 of this Act;

Provide necessary information to natural and legal persons that have filed a complaint on account of discrimination with regard to their rights and obligations and to possibilities of court and other protection;

If the court proceedings have not yet been initiated, examine individual reports and take actions falling within his/her competence required for elimination of discrimination and protection of rights of discriminated persons;

Warn the public about the occurrence of discrimination;

With the parties' consent, conduct mediation with a possibility of reaching an out-of-court settlement;

File criminal charges related to discrimination cases to the competent state attorney's office;

Collect and analyse statistical data on discrimination cases;

Inform the Croatian Parliament on the occurrence of discrimination in his/her annual and, when required, extraordinary reports;

Conduct surveys concerning discrimination, give opinions and recommendations, and suggest appropriate legal and strategic solutions to the Government of the Republic of Croatia. (Croatia 2009, Art. 12)

According to information posted on the website of the Ombudsman's Office, complaints can be addressed to the Ombudsman in writing (mail, fax or e-mail), by phone or in person (Croatia n.d.a). According to the website, information in the complaint should include: the complainant's name and address; the name of the body that the complaint is against; the case number given by the body related to the complaint; copies of relevant documents; and a description of the problem, specifying what rights were violated and whether legal remedies were used (ibid.). The same source indicates that the claimant should receive an answer from the Ombudsman about the first steps taken in the case within 30 days of filing the complaint (ibid.). There are three specialized Ombudspersons (the Ombudsperson for persons with disabilities; the Ombudsperson for children; and the Ombudsperson for gender equality) (Croatia n.d.b). Discrimination claims in those areas are forwarded to the relevant Ombudsperson (Croatia n.d.b). People also have the option of filing anonymous claims of discrimination, or of reporting discrimination on behalf of another person, if they have the permission of that person (Croatia n.d.b).

The Ombudsman's Office lists the following possible actions regarding complaints of discrimination:

Notifying the claimant that no discrimination has occurred and/or directing her/him to a competent body.

Acting upon a complaint in her competence as the Ombudsman according to the Ombudsman's Act: in cases when a person claims discrimination and the Ombudswoman finds no suspicion to discrimination, but rather elements for acting in protection of her/his constitutional or statutory rights.

In case of established suspicion to discrimination the Ombudswoman can for example:

advise a client regarding possible legal action,

issue recommendation or warning to an institution, person, or a company who discriminate against the claimant and recommend how to act in order to avoid discrimination in the future,

in certain cases may instigate court proceedings/press charges against the perpetrator of discrimination,

may propose changes of discriminatory legislation or regulations,

Acting as a third-party intervener in court procedures on behalf of the complainant,

Conducting alternative dispute resolution (mediation) upon the complainant's request. (Croatia n.d.b)

According to the Ombudsman's Summary Report on Discrimination Occurrences in 2012, the Ombudsman's Office received 202 complaints regarding discrimination in 2012, of which 60 related to race, ethnicity, skin colour or national origin (Croatia June 2013, 5-6). The most common "field of discrimination" in 2012 was related to work and working conditions, accounting for 94 of the 202 total claims (ibid., 6). The Ombudsperson closed 156 cases in 2012, 137 of which were filed in 2012 and 19 from previous years (ibid., 3-5). The Ombudsperson closed cases with the following actions:

In 42 cases "upon procedure completion of no discrimination was found established"

In 4 cases "actions were undertaken for eliminating discrimination according to ADA"

4 cases "concluded by answering to general inquiry"

7 cases "concluded by giving recommendation or warning"

8 cases "processed as falling within regular Ombudsman's Competence"

1 case "court decision made"

5 cases "free assessment Art. 12"

15 cases "party informed on legal remedies, court and other protection possibilities"

12 cases "party request withdrawal"

9 cases "court procedure underway"

2 cases "acting as intervener in court procedure"

3 cases "law amendment or subordinate legislation initiative filed"

36 cases "forwarded to special ombudspersons"

4 cases "retroactive law application prohibition" (Croatia June 2013, 4, 5)

In correspondence with the Research Directorate, a deputy ombudsperson of the Office of the Ombudsman indicated that, in 2013, the Ombudsman's Office received 249 complaints under the Anti-discrimination Act, of which 57 complaints were because of race or ethnicity, accounting for 23 percent of all discrimination complaints (Croatia 12 June 2014). The Ombudsman's Office resolved 145 discrimination claims in 2013, as follows:

16 cases "opinion, recommendation, warning or press release were prepared"

39 cases "discrimination did not occur"

2 cases "processed as regular case falling within the Ombudsman's competence"

8 cases "prohibition against retroactive application of the law"

35 cases "forwarded to special ombudspersons"

21 cases "the party dismissed the request"

19 cases "court proceedings ongoing"

6 cases "court decision passed" (Croatia 12 June 2014).

The Deputy Ombudsperson said that the cases submitted to the Ombudsman are based on the "claimant's personal perception that he/she is discriminated against," but that in the discrimination cases resolved by the Ombudsman's Office in 2013, they found "reasonable suspicion of discrimination" in only 11 percent of cases (ibid.). The Deputy Ombudsperson also clarified that the mandate to "decide on discrimination" is within the jurisdiction of the courts (Croatia 12 June 2014).

According to the Deputy Ombudsperson, Roma and Serbs are the two minority groups at highest risk of experiencing discrimination (Croatia 12 June 2014). The Deputy Ombudsperson indicated that, in 2013, Serbs submitted the largest number of claims of discrimination related to ethnicity or race, and most of the claims related to the field of employment (ibid.). The Deputy Ombudsperson noted that many Serbs are concentrated in the areas of "special state concern" [a legal term for areas that were under the control of Serb rebel forces during the war (Human Rights Watch 2006)] which have fewer employment opportunities (ibid.). The Deputy Ombudsperson noted that the cases are evaluated on an individual case-by-case basis (ibid.). According to the Ombudsperson's 2012 annual report, Serbs in Croatia are particularly affected by the poor economic situation, high unemployment, and issues related to regaining housing rights (Croatia June 2013, 16). The report indicates that "[h]ousing proceedings of the former tenancy rights bearers, mainly related to Serbs, are being conducted very slowly" (Croatia June 2013, 16). The Council of Europe's European Commission Against Racism and Intolerance (ECRI) also reported on the issue of housing rights of returning Serbs, noting that there were many complaints of "excessive duration of civil and administrative proceedings" in relation to housing (COE 25 Sept. 2012, para. 148). ECRI explained that more than 20,000 people, mainly ethnic Serbs, had their occupation rights to socially owned housing terminated when they fled during the war (ibid. para. 145). Human Rights Watch corroborates this, and notes that, in addition, thousands of tenancy rights in areas held by Serb rebel forces were cancelled under a law enacted when the government regained control over those areas (Human Rights Watch 2006). ECRI indicates that there have been 14,000 family applications for housing, of which 63 percent were submitted by ethnic Serbs (COE 25 Sept. 2012, para. 145).The government decided positively on 8,000 cases and provided 8,000 housing units, but, according to ECRI, approximately 2,750 housing units are still needed (ibid.).

In contrast to the number of complaints submitted by Serbs, the Deputy Ombudsperson said that their office did not receive any complaints of discrimination from Roma in 2013, which she attributed to the general underreporting of discrimination as well as the social exclusion of Roma (Croatia 12 June 2014). According to the 2012 annual report of the Ombudsperson, the Ombudsperson recognizes discrimination towards Roma children in the field of education as an area that requires "special monitoring and measures for fighting discrimination" (Croatia June 2013, 15).

3. The Role of the Judiciary

The Anti-discrimination Act allows for legal recourse through the courts (CMS 6 June 2014; European Network 2013, Sec. 6.1a), including through civil, criminal and/or misdemeanor proceedings (ibid.).

According to the Deputy Ombudsperson, there were 283 court cases related to discrimination in 2013 and 85 final decisions were issued (Croatia 12 June 2014). The 2013 discrimination cases included 152 civil cases, 17 criminal cases and 14 misdemeanour cases (ibid.). According to the Ombudsperson's report, in 2012, there were a total of 227 court cases related to discrimination, including civil, criminal and misdemeanour proceedings (Croatia June 2013, 10).

Sources indicate that there are two types of individual court proceedings for civil cases involving discrimination:

"incidental anti-discrimination protection" (filing a lawsuit seeking the protection of an individual right, which was violated due to discrimination) and

"special individual anti-discrimination action" (filing a lawsuit seeking a ruling of discrimination as the main issue) (CMS Apr. 2012, 10; European Network n.d.)

In a telephone interview with the Research Directorate, a representative of the Center for Peace Studies (Centar za mirovne studije (CMS), a Zagreb-based NGO that "promotes non-violence and social change linking education, research and activism" (HRH n.d.), said that the Anti-discrimination Act also introduced collective anti-discrimination court proceedings, where an organization can intervene on behalf of a group or class of persons (CMS Apr. 2012, 10).

The CMS representative explained that, in civil cases, the court can rule on whether there was discrimination, can ban the discrimination, and can award compensation (CMS 6 June 2014). For criminal cases, the claimant can report the discrimination to the Public Attorney's office and it can result in a criminal penalty (ibid.). She noted, though, that not many discrimination cases are tried under criminal law (ibid.). The European Network of Legal Experts in the Non-discrimination Field indicates that criminal charges of discrimination are prosecuted ex officio, and sanctions range from 6 months to 5 years imprisonment (European Network n.d.).

According to the Ombudsman's 2012 annual report, "unacceptable and discriminatory speech in public" was particularly related to national minorities (Croatia June 2013, 34). The same source notes that freedom of expression is protected, while discrimination is prohibited, and that the Croatian judiciary has not set a "clear-cut limit" regarding discriminatory speech (ibid.).

3.1 Anti-discrimination Court Cases

A country report on Croatia, which was drafted for the European Network of Legal Experts in the Non-discrimination Field as part of a study of measures to combat discrimination in EU member states, indicates that in a 2012 case tried in the Municipal Court of Varazdin, two Roma students at the Varazdin Business School were denied access to training at the company Branka (European Network 2013, 7, 8). The training was an obligatory part of their education (ibid.). They filed a discrimination suit and the court found that they were discriminated against because of their Roma ethnicity, forbade the company from further discriminatory actions, and awarded each claimant compensation in the amount of 8,000 HRK [approximately C$1,535] (European Network 2013, 8). In its 2012 Progress Report submitted for the Decade of Roma Inclusion, an anti-discrimination initiative by member European governments (Decade of Roma Inclusion n.d.), Croatia also reported on this case, noting that the Office of the Ombudsman and an NGO assisted with the case, and that it was the first verdict under the Anti-discrimination Act (Croatia 2012, 5). The CMS representative said that her organization won a case in which Roma were discriminated against by being denied internships by a school (CMS 6 June 2014).

According to the Ombudsperson's report, in 2011, the Ombudsperson acted as a third party intervenor on behalf of two Roma students from a secondary vocational school in Cakovec in a discrimination law suit; the court ruled in 2012 that discrimination occurred and awarded compensation (Croatia June 2013, 15). Further details on the case were not provided.

The Ombudsperson's report also notes that in 2010, the Ombudsman filed a misdemeanor case of harassment in reaction to an inscription at a bus station in Zagreb that said, "Don't touch the Roma, they are infected" (ibid.). In the first instance proceedings, the perpetrators were acquitted, but the Ombudsperson lodged an appeal against the judgment in 2012, which overturned the acquittal and sent the law suit back for retrial (ibid.).

The US Department of State's Country Reports on Human Rights Practices for 2013 reports that the Executive Director of a soccer club, when speaking on the radio, referred to the Minister of Education and Sports, who is a Serb, as someone who "has blood cells that predetermine him to hate anything Croatian" (US 19 Apr. 2014, 22). The executive director was reportedly prosecuted for violating hate speech laws, was found "not guilty," but the verdict was appealed by the prosecution (ibid.).

According to the European Network of Legal Experts in the Non-discrimination Field, there is still little case law based on the Anti-discrimination Act since it was only enacted in 2009 (European Network 2013, 6).

4. Hate Crimes

According to the European Network Against Racism's (ENAR) Shadow Report 2011-2012: Racism and Related Discriminatory Practices in Croatia, which was authored by the Centre for Peace Studies (CMS), Croatia passed a new Criminal Act in 2011 that entered into force in January 2013, which expressly states that hate crimes will be taken into consideration as aggravating circumstances (ENAR 2012, 39). ENAR states that the definition of hate crimes was included in amendments to the criminal code in 2006, but that it "had little impact in practice in terms of punitive measures" (ibid.).

The Office for Human Rights and Rights of National Minorities is the central body for gathering data on hate crimes (Croatia June 2013, 11; ibid. 23 June 2014). In correspondence with the Research Directorate, a representative of the Office for Human Rights and Rights of National Minorities explained that the Office was established in 2012 with the purpose of "performing professional and administrative jobs connected with the protection and promotion of human rights and rights of national minorities in the Republic of Croatia," such as providing support for draft legislation, monitoring the implementation of the anti-discrimination plan, organizing training sessions for stakeholders and conducting public awareness campaigns, among others (ibid.).

A report by the Ombudsperson notes that in 2012, according to statistics originating from the Ministry of Justice, there were 6 criminal cases of hate crimes, 4 of which related to race or skin colour, ethnic origin, national origin or other grounds (Croatia June 2013, 11). In addition, 21 criminal proceedings on hate crimes from a previous period were handled, of which 5 related to national origin and 1 related to religious or political belief (ibid.). According to the representative of the Office for Human Rights and Rights of National Minorities, there were 26 hate crimes identified in 2012, of which 3 related to race/colour and 5 to ethnicity/national origin/minority (Croatia 23 June 2014). Both the Ombudsperson's report and the representative of the Office for Human Rights and Rights of National Minorities indicated that of the 19 criminal cases of hate crimes that were prosecuted in 2012, 15 resulted in convictions (ibid.; ibid. June 2013, 11). Quoting statistics from the Ministry of the Interior in its 2012 Progress Report submitted to the Decade of Roma Inclusion, Croatia states that there were 26 hate crimes in 2012, 2 of which were directed against Roma (ibid. 2012, 5).

According to statistics from the Ministry of the Interior, there were 34 hate crimes in 2013, of which 31 were reportedly resolved (ibid. 2014, 40). The hate crimes included cases of bodily injury, serious bodily injury, threats, causing damage to property, extortion and public incitement to hatred (ibid.). According to the representative of the Office for Human Rights and Rights of National Minorities, there were 35 hate crimes identified by the Ministry of the Interior and 57 cases of hate crimes before the State Attorney's office, of which some were directly reported to the State Attorney's office due to meeting prequalification (ibid. 23 June 2014). Of the cases before the State Attorney, 47 related to race, ethnicity, national origin or minorities (ibid.). According to the representative, statistics on hate crimes for 2014 were not available as of 23 June 2014 (ibid.).

5. Effectiveness of Legislation in Addressing Ethnic Discrimination

The CMS representative expressed the opinion that the Anti-discrimination Act is an "advanced law and includes broad protection" but that it is "still not really effective" in terms of implementation (CMS 6 June 2014). She explained some of the problems as follows:

Many people do not know about the legislation. Not many lawyers are using it or advising their clients to use it. Many people are not keen to file a discrimination suit due to the costs involved. It is not easy to prove discrimination and it is not clear what the objectives are for proving discrimination. Some people are reluctant to use it because they do not want to reveal their ethnicity or their problem to the community. There is a general problem with people recognizing that discrimination is unacceptable. This lack of awareness is a problem both with society and the judiciary. (CMS 6 June 2014)

According to the Shadow Report 2011-2012: Racism and Related Discriminatory Practices in Croatia, Croatia has "one of the most developed national minority rights provisions" but "significant problems remain in implementation. The problems concern the lack of capacity of the judiciary, state attorneys, and the victims themselves as well as a general social climate which favours preserving the status quo" (ENAR 2012, 49).

According to the European Network of Legal Experts in the Non-discrimination Field, the length of proceedings and the costs are two barriers to the litigation of discrimination cases (2013, 57). The same source indicates that legal proceedings often last "several years" and "rarely satisfy the standards of fairness in respect of reasonable time" (European Network 2013, 57).

A reporter for Balkan Insight, who wrote an investigative piece about discrimination in Croatia, indicated that the legislation is not well known, or is being ignored (Balkan Insight 10 Nov. 2011). As part of her feature, she contacted five real estate agencies in Croatia, asking them to advertise the rental of her office space to ethnic Croatians only (Balkan Insight 10 Nov. 2011). Only one of the agencies said that the law forbade discrimination in that way, while the others believed that the client had a right to choose the criteria (ibid.).

In a telephone interview with the Research Directorate, the Head of Mission for Southeast Europe of the Coalition for Work with Psychotrauma and Peace (CWWPP), a Vukovar-based NGO that works on "issues of psychological trauma, non-violent conflict resolution, reconciliation and civil society" (CWWPP n.d.), provided his opinion on the effectiveness of the implementation of the Anti-discrimination Act based on his personal experiences working with people from a variety of ethnic backgrounds through his work (6 June 2014). He said, "The Anti-discrimination Act has not changed much in practice. Croatia has a lot of excellent legislation on the books, but it is not applied in practice, controlled, or checked" (CWWPP 6 June 2014).

The Ombudsman's report states that there is a problem with the underreporting of discrimination and that a large number of people do not know how to seek help in dealing with discrimination or do not take any actions against discrimination (Croatia June 2013, 12, 36).

In a 2012 report, the ECRI said that the slow pace of application of the Anti-discrimination Act "could be due to lack of sufficient education of legal professionals on the provisions of the Anti-[d]iscrimination Act and in particular deficiencies in recognizing discriminatory practices" (COE 25 Sept. 2012, 14).

According to the representative of the Ombudsman's Office, the main challenges to the implementation of the Anti-discrimination Act are resolving the problem of underreporting, particularly among Roma, and strengthening the strategic litigation capacities of the Ombudsman's Office (Croatia 12 June 2014).

The representative of the Office for Human Rights and National Minorities said that challenges in implementing the anti-discrimination legislation include underreporting of discrimination by victims, budgetary cuts, and the low visibility of the "central body for suppression of discrimination" (ibid. 23 June 2014).

ECRI expressed concern at the lack of adequate funding for the Ombudsman's Office (COE 25 Sept. 2012, para. 51). Sources indicate that the Office has the same budget and number of staff despite taking on the added role of implementing the Anti-discrimination Act in 2009 (ibid.; European Network 2013, 68).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Balkan Insight. 10 November 2011. "Croats Hold Roma and Muslims at Arm's Length." [Accessed 3 June 2014]

Centar za mirovne studije (CMS). 6 June 2014. Telephone interview with a representative.

_____. April 2012. Report on Implementation of the Anti-discrimination Act in 2011. Sent to the Research Directorate by a representative, 6 June 2014.

Coalition for Work with Psychotrauma and Peace (CWWPP). 6 June 2014. Telephone interview with the Head of Mission for Southeast Europe.

____. N.d. "Coalition for Work with Psychotrauma and Peace." [Accessed 13 June 2014]

Council of Europe (COE). 25 September 2012. European Commission Against Racism and Intolerance (ECRI). ECRI Report on Croatia (Fourth Monitoring Cycle). [Accessed 3 June 2014]

Croatia. 23 June 2014. Office for Human Rights and Rights of National Minorities. Correspondence from a representative to the Research Directorate.

_____. 12 June 2014. Office of the Ombudsman. Correspondence from a representative to the Research Directorate.

_____. 2014. Ministry of the Interior. "Statisticki Pregled." [Accessed 10 June 2014]

_____. June 2013. Office of the Ombudsman. Summary Report on Discrimination Occurences in 2012. [Accessed 2 June 2014]

_____. 2012. Progress Report 2012. [Accessed 10 July 2014]

_____. 2009. The Anti-discrimination Act. [Accessed 2 June 2014]

_____. N.d.a. Office of the Ombudsman. "Frequently Asked Questions." [Accessed 2 June 2014]

_____. N.d.b. Office of the Ombudsman. "Frequently Asked Questions." [Accessed 2 June 2014]

Decade of Roma Inclusion. N.d. "Decade in Brief." [Accessed 11 July 2014]

European Network Against Racism (ENAR). 2012. Centre for Peace Studies. ENAR Shadow Report. Racism and Related Discriminatory Practices in Croatia. [Accessed 6 June 2014]

European Network of Legal Experts in the Non-discrimination Field. 2013. Lovorka Kusan. Report on Measures to Combat Discrimination. Country Report 2012: Croatia. [Accessed 3 June 2014]

_____. N.d. "Enforcing the Law." [Accessed 10 July 2014]

Human Rights House (HRH). N.d. "CMS--Center for Peace Studies." [Accessed 13 June 2014]

Human Rights Watch. 2006. "Former Tenancy Right Holders Still Without Homes." [Accessed 10 July 2014]

United States (US). 19 April 2014. "Croatia." Country Reports on Human Rights Practices for 2013. [Accessed 3 June 2014]

Additional Sources Consulted

Oral Sources: Attempts to contact representatives of the following organizations were unsuccessful within the time constraints of this Response: Croatia - Office for Human Rights and Rights of National Minorities; Croatian Helsinki Committee for Human Rights; Gradanski Odbor za Ljudska Prava; Serbian National Council. Representatives of the following organizations were unable to provide information: Croatia - Embassy of Croatia in Ottawa; Croatian Law Centre.

Internet sites, including: Amnesty International; Croatia - Ministry of Justice, Office for Human Rights and Rights of National Minorities, Office of the Ombudsman; Croatian Helsinki Committee for Human Rights; Croatian Law Centre; Croatian Times; ecoi.net; European Network of Legal Experts in the Non-discrimination Field; European Roma Rights Centre; Gradanski Odbor za Ljudska Prava; Factiva; Radio Free Europe/Radio Liberty; UN - Refworld.

Attachment

Croatia. 2009. The Anti-discrimination Act. [Accessed 2 June 2014]