ACTION GUIDEFOR LEGISLATIVE

ADVOCACY

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Introduction

Lack of political culture in Bosnia and Herzegovina, Croatia and Serbia, discrimination, lack of transparency1 and exclusion of citizens and civil society from the decision making process continue to exist and slow down the process of construction of democratic institutions in these countries. The past ten years have seen very little success in terms of development of democratic institutions and observance of human rights. While dealing with numerous problems of post-war transition, the executive and the legislative branches in these countries ignore their duty towards their citizens, resolving all the key issues within narrow political circles, far from the public eye, and often outside the institutions of the system.

The legislative process, which includes adoption or amendments of laws, policies, strategies, various reforms, budgets, etc., is particularly inaccessible to the public. The key problems for civil organizations in their active involvement in the legislative process include: absence of specific and timely announcement of preparation or drafting of laws; failure to announce draft laws in advance, but rather only once they have been adopted; total absence or very rare proper public debates and consultations, with no clearly set criteria for implementing them.; limited access to information; existence of no more than a minimal legal framework for cooperation; adoption of a large number of laws under emergency procedure, thus avoiding the possibility of publicly debating the proposed text; reduction of the role of parliament to the lowest possible level; unreliable or non-existent information on the content of the text adopted at the end of the process. Once a law has been adopted, the problem if its (non)implementation remains. Thus, there has been only a de jure improvement in the exercise of human rights, and the de facto situation is either stagnant or deteriorating.

These three countries are member states of the Council of Europe and are currently at different stages of association with the European Union. This has instigated numerous reforms of current state and legislative structures, but it has also brought dramatic changes to the lives of ordinary people. It is therefore of essential importance for citizens and civil society organizations to be informed and to become actively involved in the reform process. Successful implementation of such reforms means that they need to be accepted and supported by the citizens, which is why they must correspond to their real needs and interests. Such reforms must observe the standards of human rights and non-discrimination.

Development of efficient democratic institutions that protect the rights of citizens and resolve conflicts through political rather than violent means, requires an active dialogue between the decision-makers and the citizens. Civic participation in decision-making, full application of international human rights standards, including comprehensive anti-discrimination policies, are the key preconditions for the establishment of democratic institutions and for development of democracies in these countries. This is of essential importance for long-term social integration and stability in the region.

1 Pod transparentnoš u podrazumijevamo pristup gra ana i aktera civilnog društva u procese donošenja zakona, politika, budžeta, reformi i preispitivanje praksi u njihovoj primjeni u državama.

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Legislative Advocacy Action Guide

Together with its partners in the region – the Helsinki Human Rights Committee in BiH, B.a.B.e. Croatia and Voice of Difference from Serbia, and using its experiences in legislative advocacy, Global Rights has prepared this “Legislative Advocacy Action Guide”. This Guide wishes to open and support dialogue between different stakeholders in these countries in relation to anti-discrimination standards and practices in the European Union, and to promote the existing regional humans rights protection and non-discrimination mechanisms of the Council of Europe and the EU. We believe that this will strengthen the existing capacities and motivate the citizens and the civil society to become more assertive in demanding their place in the process of adoption decisions, laws and policies protecting human rights and principles of non-discrimination. This is an extremely important step towards establishing a political culture, more efficient democratic institutions and governments acting transparently and responsibly towards all their citizens.

Public debates within civil society of these three countries were conducted in the preparation of the Guide. Recommendations and proposals for future action presented at these debates were taken into account in the preparation of the final text.

Aim of the Guide

This Guide provides an overview of the current situation in the three countries in this region: Bosnia and Herzegovina, Croatia and Serbia, from the point of view of position and influence of citizens and civil societies of those counties in the process of adoption of laws and policies protecting human rights and non-discrimination principles.

In the second part, the Guide provides detailed information on anti-discrimination directives and human rights standards of the European Union. Our aim is to support legislative advocacy action by civil society organizations in the process of adoption of laws, reforms, and policies based on these standards.

The Guide is also a reference source for different options of legislative action for protection of human rights and non-discrimination through strategic cases offered by regional mechanisms of the Council of Europe, such as the European Court of Human Rights. This is also a contribution to stronger human rights protection at national levels.

A separate section of the Guide contains basic information on different possibilities for monitoring the application of laws and policies adopted, with practical advice on how to launch and conduct independent monitoring. Finally the Guide offers advice for civil society organizations and/or civic initiatives on how to conduct advocacy campaigns.

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Bosnia and Herzegovina

Prepared by:

Helsinški komitet za ljudska prava uBosni i Hercegovini

Helsinki Committee for Human Rightsin Bosnia and Herzegovina

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General Country Background

Bosnia and Herzegovina (BiH) declared its independence in March 1992, following a referendum on independence, held in February. 67% of the electorate voted at the referendum and almost 98% of them opted for an independent BiH. On April 6, 1992 the European Union (EU) recognized BiH as a sovereign and independent state, and on May 22, 1992 it became a member state of the United Nations.

The war in BiH continued from 1992 until 1995. The peace agreement was initialed on November 21, 1995, in Dayton, Ohio, with assistance by the international community, and that marked the end of the war. The Dayton Peace Agreement was signed in Paris in December 1995, by the presidents of BiH, Croatia and the then Yugoslavia. The US, the UK, France, Germany and Russia guaranteed the Dayton Agreement. The Peace Implementation Council was established, as well as the Office of the High Representative in BiH, with wide powers and a mandate to interpret the Dayton Agreement, to assist the signatories in implementing it.

The Dayton Peace Agreement defines BiH as a state comprising two entities -- Federation BiH (FBiH) and Republika Srpska (RS).

The Dayton Peace Agreement and its 11 annexes prescribe all the issues related to the functioning of the state of BiH. Annex 4 of the Agreement is the Constitution of BiH. Annex 1 of the Constitution of BiH contains 15 international human rights documents in application in BiH, as well as the European Convention for Human Rights and Fundamental Freedoms, applied directly and with priority over domestic legislation.

BiH covers the territory of 51,129 km2 with 1,459 km of borderline with Croatia, Serbia and Montenegro. BiH also has access to the Adriatic Sea, with total coastline of 20 km.

According to the last census, held in 1991, the population o f BiH was 4,377,033, as follows:

- 43.47% Muslims (subsequently named Bosniaks),

- 31.21% Serbs,

- 17.38% Croats,

- 5.54% Yugoslavs,

- 2.38% other.2

Religious breakdown is was mainly in compliance with the ethnic one – 88% of all Croats were Catholic, 90% of all Bosniaks were Muslims, and 99% of all Serbs were Eastern Orthodox. 17 national minorities also lived in BiH, with Montenegrins and the Roma as the most numerous ones.

The current demographic structure in BiH has been changed completely, since more than 100,000 died during the war and one half of the population changed its place of residence. The BiH Statistics Agency3 estimates that as on June 30, 2006, BiH had 3,842,762 residents, but with no state level statistics on the ethnic composition.

2 1,902,956 Muslims (Bosniaks); 1,366,104 Serbs; 760,852 Croats; 242,682 Yugoslavs; 104.439 Other. 3 http://www.bhas.ba/new/

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There are five levels of governance in BiH: a) the state of BiH; b) two entities - Federation BiH and Republika Srpska; c) Brcko District; d) 10 cantons in the Federation BiH: and e) 148 municipalities.

It should be noted that BiH is administratively divided into FBiH, RS and the Brcko District, with FBiH comprising 10 cantons. That is why there are 14 legislatures in BiH and as many constitutions (Constitution of BiH, Constitution of FBiH, Constitution of RS, Constitution of the Brcko District, and constitutions of the 10 cantons within FBiH).

Position of BiH in the Process of Association with the EU

Cooperation between BiH and the EU is not a recent occurrence. Initial relations were established with the international recognition of BiH in 1992. After the end of the war, the EU provided considerable support in the process of signing and implementation of the Dayton Peace Agreement, followed by substantial financial aid and other activities aimed at accelerating the recovery of the country. It should be noted that shortly after the Dayton Agreement was signed, the Consultative Task Force – CTF – was established, with the main task of ensuring joint action in adapting the legislation of the country to EU requirements by providing technical and professional assistance to local administration in crating a regulatory framework compliant with EU standards.

Key events in recent BiH – EU relations include:

April 1992: Relations between BiH and the EU commence with the international recognition of RBiH as an independent and sovereign state.1997: Regional approach. The EU Council sets political and economic conditions for bilateral relations. BiH enjoys autonomous trading preferences. 1998: Establishment of the EU/BiH Consultative Task Force – CTF, providing technical and professional assistance in the fields of administration, regulatory framework and policy. May 1999: Stabilization and Association Process – SAP – commences. SAP offers a clear possibility for BiH and the other four countries in the region to integrate themselves into EU structures. June 1999: Agreement on the Stability Pact, a political document strategically aimed at stabilizing Southeast Europe by bringing all the countries in the region closer to Euro-Atlantic integration and strengthening regional cooperation. March 2000: EU Road Map published. This document presents 18 key conditions to be fulfilled by BiH in order to proceed with the Feasibility Study for opening negotiations on the Stabilization and Association Agreement. December 2000: The European Council adopts Regulation No. 2666/2000 on EU reconstruction, development and stabilization assistance – CARDS, Technical assistance program of the EU for reconstruction, development and stabilization, earmarked for Albania, BiH, Federal Republic of Yugoslavia, Croatia and Macedonia.November 2005: Negotiations on initialing and signing the Stabilization and Association Agreement officially opened. December 2006: Technical negotiations on SAA completed. December 4, 2007 – Stabilization and Association Agreement initialed.

The European Commission is ready to propose negotiations for EU membership, provided that BiH should take significant steps forward in a large number of areas recognized as

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priorities for further activities: harmonization with current criteria and international obligations; more effective governance, efficient public administration; efficient human rights protection; efficient judiciary; combating crime, particularly organized crime; dealing with problems of migration and asylum; customs and taxation reform; budget legislation; execution of the budget; reliable statistics; consistent trade policy; integrated energy market; single economic space; public broadcasting system.

Since the beginning of 2006 until today, the BiH authorities have not been able to meet two thirds of the conditions presented by the EU in the priorities and conditions for European Partnership, of which police reform is just one of the 72 unfulfilled or inadequately fulfilled conditions. Also, the BiH authorities have failed to meet the six key conditions presented by the EU: full cooperation with ICTY, police reform, public broadcasting reform, public administration reform and existence of an effective internal market. However, despite all this, the EU decided to initial the SAA with the belief that this would accelerate the reform process.

BiH and Civil Society

The current situation in BiH – a multi-ethic and multi-religious country in transition and reform – is very complex and difficult for most of its citizens. Citizens live in a deeply divided country. These facts are present in the minds of each and every citizens of BiH, with direct reflections on the entire civil arena.

Namely, the Dayton Peace Agreement and its 11 annexes stopped the war. Annex 4, which is the Constitution of BIH, is an arrangement obliging the authorities of BiH to accept 15 international conventions, declarations, recommendations and protocols on human rights and freedoms, with the European Convention on Human Rights and Fundamental Freedoms and its protocols applied directly and with force above all other law in BiH.

Twelve years after the Dayton Peace Agreement, the political and legislative authorities have not progressed sufficiently to unify the society of BiH. Moreover, the current political leaders and their parties are practically deepening ethnic divisions, and their rhetoric is based on maintaining the fear from the other. There is no political consensus in BiH, nor any legislative framework to deal with issues of interest for ordinary citizens and their lives. Local self-governance, labor legislation, child protection, social protection, health care, and education – none of these are within the competence of state authorities. Instead these issues are decided on by the entities, the cantons and the district, putting citizens at a discriminatory disadvantage.

There is also a high level of corruption in BiH.4 High rates of unemployment are another feature of BiH society today. In the first half of 2007, the number of unemployed persons of employable age was 515,267 – close to the number of employed persons. Nepotism and incompetence of civil servants, dissatisfied youth (according to some research, more than 65 % of youth expressed a desire to leave BiH), pensioners, and persons with disabilities – all the vulnerable groups exist in BiH. An illustration of vulnerable groups in BiH is reflected in this assessment by the World Bank: “The most vulnerable social groups carry the greatest burden of inadequate and poorly targeted social system and unfavorable business ambience”.

4 Out of 163 countries, BiH holds number 84 in the raniking by the coruption perception index – Transparency Internaional Report for 2006.

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One of the key problems is the lack of sector-based approach to identification of problems and the overall creation of systemic policies to set priorities and proposals for overcoming problems, and above all the lack of any state-level strategy in social policy, health policy, education policy, employment policy, etc.

BiH did adopt a poverty reduction strategy with a set of measures and recommendations to deal with this issue of importance for any citizen of BiH, but this document and activities by the authorities have failed to deliver the expected results.

It should not be disregarded that religious leaders exert considerable influence over politics and society. While performing services, they often send clear and unambiguous messages to the public, to state and political authorities, with content that implies direct interference with state affairs.

The country and its citizens are very clear on their Euro-Atlantic path. This should mean the acceptance of values that NATO and the EU rest on, but politically such declarations have very little support from political elites, thus very little acceptance of political reforms. There is no political will to overcome major problems that the country is faced with. All the reforms that would lead to the rule of law – Constitution, legislation, police structures, public broadcasting – are totally blocked.

Even the steps taken in this area have been the result of pressures by the international community over local authorities and are not a reflection of political will or the needs coming from within the country.

In most cases, laws, strategies and policies adopted at state level which are in compliance with European legislative practice are just documents of no consequences, for two principal reasons:

a) Their incompleteness and failure to adopt the regulations necessary to implement certain laws, as well as mechanism for monitoring the application of such laws, and

b) Legislation of the entities and of the Brcko District is not adequately harmonized with BiH legislation.

In practical terms, this means that BiH authorities are not focused on concrete results that would improve the quality of life of their citizens, and that they continue to act irresponsibly and carelessly, with politics more connected to personal rather than public interests. Public services are of poor quality and not easily accessible to the citizens, and corruption is present in all segments of society. Processes and capacities for assessing the impact of laws and decisions adopted are underdeveloped. There is an evident lack of good analytical data and conclusions, which diminishes considerably not only the level of public information on what really goes on in the society, but also decreases the possibility of launching key advocacy action.

All this leads to a situation where citizens are left on the margins of interests of politicians and political elites in all the democratic processes, as they are inhibited from being active participants in the process of constructing a better future. But, citizens have also failed to take initiative to demonstrate sufficient activism and persistence to fulfill their civic duties in terms of putting pressure on the authorities to fulfill the conditions for Euro-Atlantic integration more quickly and more effectively.

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There is thus, on the part of the citizens, an overall lack of positive approach to events in the society – an absence of vision, rather, that things could be better, and an absence of motivation to work more actively on achieving progress.

According to some surveys, the general assessment is that economic and social situation in BiH is bad, with direct impact on deteriorating inter-ethnic relations. Adding to this fact that political leaders are ineffective in reaching consensus on reforms, particularly those of the Constitution and the police, then it becomes clear why citizens have less and less confidence in the institutions of governance and political leaders.

The most prominent segment of civil society are non-governmental organizations and civic associations. They are the alternative to political and other views promoted by political elites. As representatives of the citizens, NGO’s insist with the authorities on issues of importance for the livelihood of their members and citizens of BiH.

BiH legislation only recognizes the terms civic association or foundation, and that is the only way for NGO’s to be registered. The BiH legislation does not at all use the term non-governmental organization.

It is estimated that there are more than 9,000 civic associations registered in BiH at local, cantonal, entity and state levels. The very fact that there are so many levels of registration indicates that there is no political will among state and entity authorities to create a common legislation framework for the NGO sector. Judging by the number of associations and informal groups, the civil scene should be a strong and influential corrective element in BiH public policies.

Unfortunately, the NGO sector does not have the cohesion, the strength and the solidarity that would drive it towards results of importance for faster and more functional steps towards better living conditions and acceleration of Euro-Atlantic integration processes.

There is also no official classification of the BiH NGO sector in terms of their missions and program activities, but there is a natural division of the NGO sector into organizations dealing with:

a) Human rights;

b) Youth issues;

c) Environmental protection;

d) Promotion and protection of civil society;

e) Vulnerable groups and minorities; and

f) Other associations such as sports, hobbies, culture and arts, and the like.

Good and Bad Practices – Public Advocacy

The NGO sector is the author of numerous initiatives, particularly in issues of general social importance. It proved to be good to establish networks and coalitions of NGOs. The first coalitions dealt with elections, the Gender Equality Law in BiH, the Law against Domestic Violence, and specific issues related to adoption of state-level action plans, such as

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the Action Plan for Combating Trafficking in Persons, Action Plan for Preventing Violence Against Children, etc.

One of the most successful public advocacy actions was led by the Helsinki Human Rights Committee in relation to the Law Against Discrimination. A group that included lawyers and NGO activists in the field of human rights prepared the draft law. The draft was then submitted for public debate, which was summarized in four round tables held in Banja Luka, Mostar, Brcko and Sarajevo. The round tables included representatives of almost 100 NGO’s from across BiH, including those which brought together members of vulnerable and marginalized groups, i.e. those citizens who are usually victims of discrimination.

After incorporating comments arising from public debates, the Draft Law Against Discrimination was presented to the Minister for Human Rights, Refugees and Asylum and his associates, the Joint Committee for Human Rights, Children’s Rights, Youth, Immigration, Asylum and Ethics of both houses of the BiH Parliamentary Assembly, and the Legislative Committee of the BiH House of Representatives. The Draft Law was also published in two key daily newspapers.

The Joint Committee held a session on October 10, 2007 and adopted unanimously a conclusion that they would act as the proponent of the Law. A working group was established, comprising delegates from both houses of the BiH Parliamentary Assembly, the Ministry for Human Rights, Refugees and Asylum, the Ministry of Justice and NGO representatives, with the aim of preparing a final draft to be submitted for parliamentary procedure.

Still, only a few NGO initiatives, particularly advocacy action, actually reach this level of success. The reason is perhaps that the first serious efforts in educating the NGO sector on public advocacy only started in 2000, by Global Rights BiH.

In order to present valid indicators on the level of understanding and utilization of the legislative process by the citizens and by civil society in advocacy activities aimed at resolving discrimination problems, a questionnaire was designed with 23 questions. The questionnaire was supposed to investigate and analyze “democratic mechanisms which facilitate/inhibit civic participation, i.e. civil society participation in the decision-making process”. Following an evaluation, it was decided that all the public advocacy actions conducted by NGOs failed to provide satisfactory results.

For example, NGO and citizens’ participation in state-level decision-making is reflected in 5 to 6 public advocacy activities in the past 5 years, which is not satisfactory. It is also indicative that 77% NGO representatives stated that they did not have their representatives in working bodies, ministries, assemblies etc. On the other hand, through different coalitions the same organizations managed to complete successfully 19 different initiatives on proposals, changes or amendments to different laws.

As we have the data on the number of registered NGO’s, it is normal that citizens expect more efficient and more effective representation of their interests. Unfortunately, numerous advocacy activities do not deliver the expected results.

A considerable number of NGO’s working at local level and taking initiatives (according to the questionnaire, an average of 4) is of only marginal influence in local

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authorities. The most frequent reason for the marginalization of such initiatives is that the local authorities fail to understand the role and significance of the NGO sector. It should also be said that the NGO sector does not demonstrate sufficient persistence in issues they identify. They usually give up before anything has been resolved. It is interesting that local NGO’s have more representatives working bodies of local self-governance – as many as 67% of them, leading to a realistic expectation that they should have greater influence on local authorities.

It should also be noted that NGO’s include those whose pubic advocacy serves the ends of particular parties and party leaders. This creates a bad image of the civil sector in general, and it affects the credibility of independent and impartial work of NGO’s as the government’s corrective. On the other hand, there has been a trend of growing government pressure on NGO’s providing argued criticism of the work of the authorities. This pressure is manifested through intimidation and public attacks against representatives of those organizations whose work is to be discredited.

According to the questionnaire, all the NGO’s in BiH deal with discrimination. 77.78% of them know that there is no plan for combating discrimination. Despite this fact, there is no awareness and no advocacy to adopt such a document. Further analyses uncovered that 22.22% of all NGO’s are unfamiliar with the European human rights protection system, i.e. the European Human Rights Convention and its protocols. Of all the organizations surveyed, 77.78% had no involvement in monitoring the process of EU association.

The analysis provided demonstrates the influence of the NGO sector on the legislatures. It is evident that there are campaigns focused on entity and state authorities, and that there are activities aimed at motivating the governments to take action that would bring BiH closer to Euro-Atlantic integration. At the same time, NGO representatives themselves hold these activities and campaigns to be relatively unsuccessful.

Analyses of Rules of Procedure and Laws

The BiH Constitution treats all the citizens only as members of the three constituent peoples – as Serbs, Croats or Bosniaks, thus completely omitting the notion of belonging to the state of BiH or to the BiH nation.

The solely ethnic approach, which also determines the right of participation in political life, is contrary to any inclusive concept. The overall organization and functioning of key state institutions are based on the ethnic principle alone. Constitutions of the state and the entities reserve certain public offices for persons of particular ethnicity. In this way, persons who fail to declare themselves to be members of the required ethnic group are legally prevented from assuming office. This situation mainly refers to persons who do not declare themselves as Bosniaks, Serbs or Croats. Thus, instead of focusing constitutional definitions on citizens and members of the BiH society – as is the case in modern democratic systems – BiH accepts the exclusive concept of the so-called constituent peoples.

The BiH Constitution and constitutions of the entities and cantons provide for the right of peaceful assembly and association. In addition to the constitutionally defined right of assembly and association, state and entity laws on associations and foundations also regulate this issue.

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Pursuant to Rules of Procedure of the House of Peoples of the BiH Parliament, authorized proponents of laws include delegates, a committee of the House, a joint committee, the House of Representatives, the BiH Presidency and the Council of Ministers. This shows that NGO’s cannot propose state-level laws directly. On the other hand, NGO’s may initiate laws or submit drafts to any of the bodies listed, and lobby and advocate for the law to reach the parliamentary procedure. In 2005, the BiH Parliamentary Assembly adopted “Uniform rules for drafting regulations in BiH institutions”5 and Article 75 provides for the possibility of consulting members of civic associations in the process of drafting legislation. In late 2006, the Council of Ministers adopted “rules on consultations in legislative drafting” providing for the time, method and conditions for including the public and civic associations in the consultation process during legislative drafting.

This is the first formal possibility for including the public and the civil society in debates on laws adopted at state level. However, few organizations are aware of this possibility, and the authorities have done almost nothing to promote these mechanisms, nor do they observe them. Also, this is not provided for at entity level, or at the level of all the parliaments. This is especially important because most of the laws of particular interest for the citizens are adopted at the level of entities or below.

These rules do not apply to laws adopted under emergency procedures, which is usually the case. There is also the question of interpretation of “legislation” in terms of whether it includes consultations in relation to budgets, reform initiatives, action plans or policies.

Article 151 of Rules of Procedure of the FBiH house of Peoples and Article 192 of Rules of Procedure of the RS National Assembly provide for the possibility for citizens and NGO’s to launch initiatives for adoption of laws. Additionally, according to the RS Rules, citizens may propose a law, provided that 3,000 signatures are collected for that purpose. In both entities, it is the Legislation Board that confirms the need to adopt a law, and after that, if the Joint Committee approves the initiative, it proposes a draft law that does not have to come from those who actually filed the initiative to adopt it. Prior to voting in the RS National Assembly and both Houses of the FBiH Parliament, draft laws are considered by the Legislation Board/Committee and other competent working bodies. The RS National Assembly and the Houses of the FBiH Parliament establish working bodies, and they may include invited representatives of civic associations, if the law is directly related to the interests of such associations.

Pursuant to Rules of Procedure of the RS National Assembly, some boards (such as those for youth issues, protection of veterans of war, etc.) may include accredited NGO’s with no right of vote. Following a public invitation, the National Assembly decides on assigning such accreditations.

Pursuant to Rules of Procedure of the House of Representatives of the FBiH Parliament, an initiative for adoption of a law may be launched, inter alia, by “citizens, enterprises and other legal persons within their constitutional powers”. An initiative is submitted to the Speaker of the House, and after it has been considered by the Legislation Committee, the Speaker forwards it to competent working bodies of the House of Representatives and the Government, for further opinions. The proponent of the initiative may

5http://www.uino.gov.ba/download/Dokumenti/Dokumenti/bos/Poslovne_usluge/Jedinstvena_pravila_izrada_pravnih_propisa.pdf

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attend a session of the Legislation Committee. Preparation and drafting of the text are decided on by way of a conclusion to accept the initiative, issued by the House of Representatives.

In the Brcko District and in the entities there is a possibility for citizens and associations to submit initiatives for laws in specific areas. Article 67 of Rules of Procedure of the Brcko District defines this. On the other hand, laws can only be proposed by assembly delegates and the District mayor. A debate on a law may include citizens and NGO representatives, with a previous announcement. They may take part in the discussion but they have no decision-making powers.

Speaking about rules of procedures of parliamentary assemblies in BiH, at state, entity and district levels, one cannot ignore the fact that the committees have the possibility to propose laws but have no rules of procedure. It should also be noted that they fail to use the knowledge, competences and skills and information available from civil society organizations, as well as from certain independent professional groups. Another problem is that there is no greater coordination among affiliated committees, both horizontally and vertically. As rules of procedure do not provide for a formal possibility for calling public hearings, they are used very rarely, i.e. in an insignificant number of cases.

An important mechanism for participation in decision-making processes is the Law on Freedom of Access to Information, which allows citizens, organizations and any natural or legal person to ask the authorities to provide them with any information in their possession. The Law thus ensures transparency, and thus greater accountability of holders of power at any level. Unfortunately, this mechanism is very far from being adequately utilized, primarily by civil service organizations, and individual citizens in particular. On the other hand, government representatives are not always wiling to provide the requested information. Of course, in a situation like this, civil society organizations do not have adequate information or knowledge to take stronger action in public advocacy.

Conclusions and Recommendations

All the above indicates that there has been some improvement at entity levels, allowing citizens and the NGO sector to improve the level of democratic development through their own active engagement in designing initiatives for adoption of laws, participation in debates, etc. On the other hand, there are no efficient legal mechanisms to initiate laws at the level of the state. Because of this situation, NGOs are often unable to submit any initiative for parliamentary procedure without major lobbying and advocacy campaigns.

Civil society organizations and NGO’s:

- There is an awareness among civil society organizations that the state can no longer adopt and implement key polices, reforms and laws without active participation and consultation with such organizations and with citizens, and that NGO’s must become more assertive in such processes;

- Civil society organizations should come together in an informal coalition/network that would advocate the adoption of formal mechanisms for participation and consultations in the process of adopting laws and policies on all levels of governance, thus facilitating the involvement of civil society;

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- Organizations wishing to be actively involved in the adoption of laws and polices need much more information and knowledge on good regional and international practice and experiences in both formal and informal civic and civil society participation in such processes;

- Organizations need more information and knowledge on the existing (in)formal mechanisms for participation in the process of adoption of policies and laws at domestic levels, as well as methods for their participation in the process of bringing BiH closer to the EU;

- Organizations should work much more on research, needs assessment and similar preparatory activities, before they launch any advocacy on key reforms;

- Civil society organizations must do more to inform the public on what civil society and non-governmental organizations are, what is their role in the society, and they need to speak more about their work and their successes, as well as the benefits citizens may draw from their work; it is also very important to find effective methods of cooperation with citizens/the public, and secure stronger public support for their actions and activities.

Authorities:

- It is necessary to establish formal mechanisms to allow civil society organizations to take part in decision-making processes on all levels of governance;

- Formal mechanisms for participation and consultations should be established in order to take into account and utilize the knowledge and experience available from civil society organizations;

- When considering any issue of importance, such as constitutional reforms, public budgets, implementation of laws, opinions and views of civil society organizations and citizens should be considered and respected.

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Croatia

Prepared by:

Be Active Be Emancipated

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General Country Background

Croatian Government announced its secession from Yugoslavia on June 25, 1991. Namely, at the referendum held on May 19, 1991, 93.94% voted in favor of the independent and sovereign Republic of Croatia. Since a referendum decision was obligatory for all the bodes pursuant to the Constitution of the Republic of Croatia, the Croatian Parliament (then called Parliament of the Republic of Croatia) issued two decisions on June 25: Declaration on the sovereign and independent Republic of Croatia and the Constitutional decision on sovereignty and independence of Croatia. Under pressure from the international community and pursuant to the Brijuni declaration of July 7, a three-month moratorium was placed on those decisions. Upon expiry of the moratorium, on October 8, 1991, the Parliament issue a unanimous decision on termination of all the legal relationships between the Republic of Croatia and other republics and provinces of SFRY. The Parliament also stated that the Republic of Croatia no longer deemed legal any body of the then SFRY and no longer considered valid any of its legal acts. Slovenia, Latvia, Lithuania, the Ukraine, Island and the Vatican first recognized Croatia. Germany, Italy and Swede announced recognition in late December 1991. In mid-January 1992, EU countries, EFTA and eastern European countries recognized Croatia. Arab countries followed suit. Croatia was also recognized by Russia, and some time later by Israel and the US.

According to the 2001 census, there were 4,437,460 persons living in Croatia, of whom 48.13% are men and 51.87% women. By ethnicity, there are 89.63% Croats, 4.54% Serbs, 1.80% undecided, 0.47% Bosniaks, 0.44% Italians, 0.37% Hungarians, etc. the education structure is as follows: 0.67% unknown; 2.86% no education; 15.76% without completed primary school; 21.75% with completed primary school; 47.06% with completed secondary school; 4.08% post-secondary; 7.82% with university degree and above (masters and doctors of science).

The total surface of Croatia is 56,542 km², and the surface of territorial waters is 31,067 km².

It is organized as a parliamentary democracy. Croatia is a member state of the United Nations and candidate for the EU and for NATO.

Relations between Croatia and the EU6

In June 2004, the European Council granted Croatia the status of a candidate country. Accession negotiations were launched in October 2005. The Stabilization and Association Agreement between Croatia and the EU was signed in October 2001, and it came into force in February 2005.

Accession negotiations continued and following an analytical review in October 2006, the Commission submitted all the 33 reports to the Council.

So far, fourteen chapters have been covered by the negotiations (research and development, education and culture, economic and monetary policy, industrial policy, customs, intellectual property rights, freedom of services, company law, statistics, financial

6 Relations between the EU and Croatia are based on the working document of the Commission: Croatia – 2007 Progress Report, Brussels,November 6, 2007. SEC(2007)1431; COM(2007)663.

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services, financial control, IT society and the media, consumer protection and health care, foreign relations), whereas two have been provisionally closed (research and development, education and culture).

The Council established standards for ten chapters (public procurement, market competition policy, justice, freedom and security, employment and social policy, fee movement of capital, agriculture, environment, food safety, regional politics) and presented them to Croatia. The Commission believes that only the standards related to justice need to be met at this stage. Political and economic dialogue between Croatia and the EU continues. Meetings related to political dialogue were held in Brussels in April, at ministerial level, and in June 12007, at the level of senior officials. Topics included principal challenges Croatia is faced with pursuant to the Copenhagen criteria on economy and policy, and a review of progress towards fulfilling conditions contained in the Accession Partnership.

Implementation of the Stabilization and Association Agreement (SAA) continues with no major difficulties. The principal problem is still the discord with provisions on state support, particularly in relation to the obligation to present restructuring plans for shipbuilding and steel industries. Considerable efforts have been invested to improve the SAA provisions related to access to real property.

Through the Accession Partnership, the EU directs the authorities towards reform priorities; Progress is supported and monitored through SAA bodies. The Stabilization and Association Board met in December 2006 and in April 2007. Seven sectoral sub-board meeting took place since December 2006. On the basis of the Accession Partnership, in April 2007 Croatia adopted its National EU Accession Plan.

Financial assistance is available through the new pre-accession assistance instrument (IPP) as of 2007.

The Multi-annual Indicative Plan Document (MIPD) for Croatia for the period 2007 - 2009 was adopted in July. The national IPP plan for 2007 amounted to 141million Euros. Assistance was focused on developing institutions and preparation for implementation of the Common Agricultural Policy and the Cohesion Policy of the EU. Moreover, Croatia continues to benefit from regional programs. Management of pre-accession assistance was decentralized in 2006. However, during 2007 Croatia showed certain weaknesses in implementing assistance programs, which necessitates urgent attention.

As for financial assistance to civil society, a stipend of 3 million Euros will be launched to for civil society support in the following areas: environment and sustainable development, democratization and human rights, and youth. Moreover, a contribution f 12 million Euros for cross-border cooperation with Italy, Slovenia and Hungary will promote dialogue between local and regional authorities.

Cross-border cooperation will continue within IPP and will include the neighboring countries.

Croatia’s participation in Community programs is also an important tool in implementation civil society dialogue.

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Relationship between the State and Civil Society Organizations in Croatia

The place and role of civil society organizations and initiatives may be assessed on the basis of the legal framework (de iure) and insight into existing practices (de facto). In the manual of the Organization for Economic Cooperation and Development: Citizens as Partners: OECD Manual on Information, Consultation and Public Participation Implementation Policy Design7 lists three levels of cooperation between the citizens and bodies of state (executive) authority:

“Information – a one-way process: information flows one way only, from the government to the citizens, the government informs the citizens as it sees fit or citizens obtain information at their own initiative;

Consultations – the government seeks and receives information from the citizens in the process of public policy design; it is a two-way process wherein the government decides on the participants; moreover, the precondition for feedback from the government is that the government has already provided citizens with information;

Active participation – the next level of a two-way process: citizens are actively involved in public policy design, for example, through membership in working groups for drafting laws.8”

Legislative Framework

The basis for civic initiatives and civil society involvement is in the Constitution of the Republic of Croatia. Although Article 1 refers to the people rather than citizens, several articles refer directly to the forms of participation, with direct election of representatives, are provided for by the Constitution: Article 42 recognizes the right of all persons to public assembly and peaceful protests, and Article 43 guarantees “the right to free association for the purpose of protection… of rights or promotion of social, economic, political, national, cultural and other beliefs and aims. For that purpose, anyone may freely establish trade unions and other associations, join them or leave them, in accordance with the law. The right of free association is only restricted by the prohibition of violent endangerment of democratic constitutional order, independence, unity and territorial integrity of the Republic of Croatia”. Article 46 grants every citizen the right to “file applications and complaints, to make proposals to state and other public bodies and to receive an answer from them.” Article 84 restricts the right to propose laws, as this can only be done by “each delegate, delegates’ caucuses and working bodies of the Croatian Parliament, and the Government of the Republic of Croatia.” Article 132 “guarantees to the citizens the right to local and regional self-governance”. This right is exercised through “local and regional representative bodies, comprising members elected at free and secret elections, on the basis of equal and general election rights. Citizens may participate directly in public affairs management, through public gatherings, referenda and other forms of direct decision-making, pursuant to the law and statutes” (Article 132.).

Constitutional Law on the Constitutional Court of the Republic of Croatia is also important for civil society and its initiatives, as Article 38 states that “ (1) Any legal and

7 Oksimoron, Zagreb, 2006. 8 „Gra ani kao partneri: OECD- ov priru nik o informiranju, konzultiranju i participiranju javnosti u kreiranju provedbene politike (OECD, 2006)

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natural person shall have the right to propose proceedings for assessment of concord of a law with the Constitution and for assessment of concord of other regulatains with the Constitution and with law.” Pursuant to Article 49, “(1) The Constitutional Court shall hold advisory hearings if it holds that prior to deciding on the merits of the case a hearing is required with parties to the proceedings, state bodies, bodies of local and regional self-governance, associations, scientists and other experts.” As far as we know, the Constitutional Court has not yet used this possibility to hold advisory or public hearings. In fact, it can certainly be said that this opportunity is not commonly utilized.

Several articles of Rules of Procedure of the Government of Croatia restrict information to the public in relation to its sessions, and only indicate the possibility for the Government to consult civic initiatives or civil society organization. Article 22 allows for Coordination meetings not to be recorded, which means that some of the things said in those meetings may never be evaluated. Article 26 sets the same restriction of access to information for meetings of Personnel and Administration Committees, as it states that they are “closed to the public”. There is no provision that records should be available to the public, although this should be the case pursuant to the Law on Freedom of Access to Information.

Article 28 of the Rules (paragraph 5) states that the Government “shall respond to objections and proposals made by the Legislation Office, the Ministry of Finance and other bodies of state administration,” but it ahs no obligation to do so if approached by civil society organizations. There is a positive provision in Article 27, paragraph 5, which states that “ministries and state administration bodies shall, as a rule, while preparing proposals and opinions for the Government, submit them for opinions by professional associations, whose scope of work includes the subject of those opinions and proposals,” because it “sets the foundation for inclusion of civil society organizations in the process of drafting of legislative texts.”9

Rules of Procedure of the Croatian Parliament, Article 2, provide that, inter alia, the Rules regulate “public nature of work of the Parliament”. Article 49 states that working bodies of the Parliament (its boards) may “involve scientific and other organizations and individual experts in the preparation of acts or consideration of certain issues within their scope of work, provided funds have been secured for it”. Specifically, pursuant to Article 54, “a working body of the Parliament may invite scientists, experts and public figures to obtain their opinion on mattes discussed in the meeting. Scientists, professionals and other persons appointed to the Board for the Constitution, Rules of Procedure and the Political System, the Legislation Board, the Board for the Judiciary, the Board for Economy, Development and Reconstruction, the Board for Human and Minority Rights, the Board for Labor, Social Policy and Health, the Board for Education, Science and Culture, the Board for Agriculture and Forestry, the Board for Local and Regional Self-governance, and the Board or Information, IT and the Media, with all the rights of members of such boards, save the right of decision-making”. This means that out of 24 boards and 1 commission, 12 may elect external members.

The Board for Human and Minority Rights always includes at least two persons from civil society organizations. Article 130 refers to the possibility that “when indicating the need to adopt a particular law… proponents of that law may cite applications and proposals which may be submitted by the citizens pursuant to the Constitution, and include them in their

9 Ariana Vela, Sudjelovanje organizacija civilnoga društva u zakonodavnom procesu u Republici Hrvatskoj, Analiza stanja, problemi i preporuke, (GONG, 2007.)

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presentation of the need to adopt or amend a law”. Articles 250 and 251 define how the Parliament informs the public and on what. It states that “Official Journal of the Parliament” “Reports of the Croatian Parliament” present:

- An overview of key topics debated by the Parliament at its sessions, - Individual proposals and final proposals of laws and other acts of Parliament, - Individual texts of laws and other acts adopted, - Conclusions reached by the Parliament and its working bodies, - Incentives, positions and opinions presented in relation to topics discussed and decided on

by the Parliament, - Acts by the President of the Republic, - Summaries of speeches delivered in the Parliament, - Delegates’ questions and answers by the Government, - An overview of the Government’s work, - A chronology of key events in the Parliament, the Cabinet and the Government, - A chronology of inter-parliamentary work of the Parliament, - Biographies of officials elected and appointed by the Parliament.

Croatia and Civil Society

If we look at the de facto place and role of civil society in Croatia, we will observe that it has changed and has often not been at all in compliance with the legislative framework, particularly with provisions of the Constitution.

A clearly negative attitude towards civil initiatives and human rights organizations, public advocacy and lobbying for legislative changes and changes in public policies had been dominant until 2000.

A pilot project by the CIVICUS civil society index for Croatia was implemented in 2001 and it illustrated the then attitude of the state towards civil society:

1. The state failed to recognize the importance of civil initiatives; instead, it demonstrated a very negative attitude towards civil society organizations, so that part of civil society acted like political opposition;

2. Until 2000 there was no adequate legislative framework for establishment and work of associations (in 2000, the Constitutional Court abolished 16 provisions of the Law on Associations, as they restricted freedom of association);

3. There is considerable mistrust of the state in its citizens as capable of doing useful things without the paternalistic attitude of the state;

4. Civil society organizations do not cooperate enough with the Government and with local authorities in the preparation, adoption and application of different policies, laws and decisions;

5. The state does not adequately recognize citizens active in civil society; 6. Tax incentives for civil society organizations as non-profit organizations were adopted

late. The 1993 debate on tax system reform stated that non-profit organizations should not have the opportunity to receive donations as tax-deductable expenditure as this was a matter of money laundering. Tax incentives for citizens and for generally beneficial aims were only introduced in 2000, after a change in government.10

10 Bežovan et al., 2005.

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“Only the coalition government (2000-2003) adopted the legislative framework for the establishment and work of civil society organizations at the level of developed countries and produced, in collaboration with civil society representatives, a program of cooperation of the Government with the non-governmental, non-profit sector (December 2000.). However, even that government failed to adopt the National Strategy for an environment conductive to civil society development, education for active citizenship was not introduced in primary and secondary schools, and the legislative framework failed to resolve any issues related to charity organizations. The coalition government recognized the work of civil society in the field of human rights protection merely formally, rather than substantively.

Due to at least formally different attitude of the state towards civil society organizations, and due to the continuous work of civil society organizations themselves, s they entered the public sphere much more, the attitude of the citizens towards them began to change. According to research on “Public Attitudes towards NGO’s”, conduced in 2005 by the Ivo Pilar Institute for Social Studies for the Academy for Educational Development (AED), three quarters of total population had a positive attitude towards civil associations (12 % more positive in comparison with the 2002 GfK research). Also, more than one half of the population held that associations played an important role in underscoring and resolving problems in the society and held that they were far more effective in their work than they had been 5 years ago.

However, the Government which cam into office in 2004 was not truly interested in any active cooperation with civil society organizations dealing with democratic development. This is illustrated by three facts:

1) Tax incentives for civil society organizations working for public benefit were restricted again, so that their work was “clearly less present in the legislation than some other activities, as some important activities (such as human rights and the environment) were not recognized at all, and many were recognized only in some aspects, whereas others (for example, possibilities of receiving funding from public funds or fortune games) were not recognized at all, or were recognized inconsistently (i.e. through exemptions from some of the dues, etc.)11”;

2) Length of the process of designing the National Strategy for creating an environment conductive to civil society development;

3) The way in which the role of civil society was defined in the “Communications strategy for informing the public on Croatia’s progress towards European integration”.12

“National strategy for creating an ambience conductive for civil society development was adopted partly due to international pressure, as the state was unable to apply for the EU PHRRE programs without it, and partly as the result of pressure by civil society organizations. The draft strategy prepared by a team of independent experts for the Government (back in 2005) was criticized publicly by organizations in the Civil Society Forum – Zagreb. Following clearly argued positions of the Forum, the document was further developed by the Vice Prime Minister and she collaborated with the National Fund for Civil Society Development in order to bring together a new working group, which now included a considerable number of stakeholders (mainly civil society representatives). Work on the national strategy was a good example of how public advocacy (public presentation of views,

11 Draft National Strategy for Creating an Environment Conductive to Civil Society Development, 2006. 12 Kunac, S. 2006:25,26.

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pressure through the media, etc.) of civil society organizations resulted in their inclusion in the process of adoption of a particular public policy.

Future contribution of civil society organizations in the field of democracy and human rights protection will largely depend on Croatia’s accession to the EU. In light of that. The Communications strategy for informing the public on Croatia’s progress towards the EU isan important indicator on how the Government sees the role of civil society. The very title of the strategy indicates that the Government sees its citizens as passive recipients of the information that the competent institutions deem to be important, rather than seeing them as active participants in such communication. The strategy did not undergo any public debate or consultation with those on whom it relies on for its implementation, thus challenging the effectiveness of its application. Moreover, contrary to the European Communications Policy, this strategy fails to include the basic principles, which are “part of the very foundations of democracy in Europe.”13 It is a matter of the right to information and freedom of expression, the principle of inclusion, diversity and participation, because “all the citizens should have the right of access to information of public interest (...). Citizens should have the right to present their views, the right to be heard, and to communicate with decision-makers”14.

According to the Government’s communications strategy, the role of civil society is to be a mediator in conveying messages. Civil society is not and must not be a mediator in conveying Government's messages, as clearly indicated by the “basic principles of democracy in Europe”. Moreover, the Ministry of Foreign Affairs and European Integration (as the author of the strategy) does not see civil society organizations as “motivators and promoters of public opinion in Croatia”15 Furthermore, it does not include civil society organization working on implementation of European standards and democratic principles as complementary partners for dialogue on issues of European integration, listing instead, for example, the European movement and European centers, because, associations for, for example, women’s rights or environmental protection “are not narrowly focused on issues of European integration16”.”17

Public Advocacy Practices18

Basic problems encountered by civil society organizations in their active involvement in the legislative process include: absence of specific and timely announcement of activities by proponents of laws and other acts, thus diminishing the possibility of good preparation; failure to publish draft laws in advance, but rather only once adopted by the Government; total absence of, or very rare occasions for quality debate or consultations, with no clearly set criteria for their implementation; limited access to information; presence of a minimum legal framework for cooperation, mainly of declarative nature; adoption of numerous laws under emergency procedures, resulting in adoption of poor quality laws (in the first two years of the previous Parliament, 82% of all laws were adopted under emergency procedures, showing clearly that emergency procedures are not used solely for exceptional situations); reduction of the role of parliament to the minimum; unreliable or insufficient information on what the final content of the law will be in the Official Gazette.

13 White paper on a European Communication Policy, 2006. 14

White paper on a European Communication Policy, Part 2 – 1. Defining common principles, (Brussels, 2006:5)15 Communications Strategy, 2006:12 16 Communications Strategy, 2006:14 17 Kunac, S. 2006:27-28 18 For details, see Arijana Vela, op. cit.

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In light of procedures and proponents, the consultation process may be divided into three groups:

1) Formal consultation process, 2) Informal consultation process, 3) Combined consultation process.

Formal Consultation Process

The principal feature of the formal consultation process is that the state, first of all the Government, specific ministry or organization of state administration, are the initiators of contacts and cooperation. The state is the subject, which recognizes experience and knowledge within civil society organizations, which is why it seeks their assistance in finding the best solutions. A partnership is established between the state and civil society organizations within a very short time, with a very high level of information on both sides.

Cooperation mainly takes the form of working groups, with relatively unknown criteria for selecting members from civil society so one may say that the state invites organizations on the basis of its subjective view of those organizations’ achievements. At that, it is possible that organizations with realistically the best results in a given field are not invited to participate at all.

The quality and results of such work largely depend on the person appointed as the head of the working group and the ability of such a person to manage a team, the complexity of the subject matter to be regulated, the level of understanding of the subject matter by all the participants, the time frame for the preparation of the draft, and financial resources made available for the costs incurred. At that, formal preconditions for the draft may be fulfilled.

The most recent example of a formal consultation process is the establishment of a working group preparing the draft law on voluntary work.

Informal Consultation Process

The basic difference between formal and informal consultation processes is that the latter is not initiated by the state, but rather by civil society organizations, and the methods of work are not consultations, but rather ad hoc reactions, submission of comments to legal texts, media pressure, and ultimately the submission of proposals for amendments, criticisms and recommendations. All this starts from initiatives by civil society organizations themselves. As the legislative process is devised to avoid consultation with civil society and the general public, it is logical and confirmed in practice that this model of civil society response usually apples to legal texts which have already been produced.

One of the major problems that the public and civil society organizations face is the low level of information, as there was, until recently, no systemic plan for changing or adopting legislation. Even if there was any such initiative by the state, it usually failed to observe the time frame set for it, nor did it include the public concerned.

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Combined Consultation Process

Features of this model include elements of formal and informal models, but not at the same time. Instead, only individual elements of either model appear at a certain stage of drafting or adopting laws.

In relation to this model, it is important to note that civil society organizations often advocate the establishment of state bodies which have not existed previously, and adoption of laws on matters that have not been regulated prior to that, citing arguments, comparative analyses of laws, offering specific models and solutions. The state typically refuses or systematically ignores advocacy initiatives, primarily because of mistrust in relation to proposals by civil society organization. However, there has been some change over time, in terms of the state’s acceptance of proposals by civil society organizations, selecting at the same time only those arguments and models that suit it, without introducing civil society organizations into the drafting process, but rather presenting those ideas as its own. The bad consequences of such practice are mainly caused by the fact that the government has ignored civil society initiatives for too long, deciding to introduce a particular model too late, further complicating the implementation of certain laws.

There have been cases of civil society organizations acting upon their own need to draft a particular legal text which was taken into consideration by a particular state body following long periods of advocacy and lobbying, and then submitted for adoption procedure. There are numerous examples of combined consultation model, including the Gender Equality Law, the Law on Freedom of Access to Information, the Law on Legal Aid, etc.

Other forms of consultation to be mentioned in the combined model include monitoring of the work of parliamentary committees, meetings with delegates and caucuses on specific and clearly set topics and areas, and collaboration with state institutions that are in charge of drafting specific laws.

Conclusions and Recommendations

Until now, there has been no systematically regulated or implemented practice of cooperation between civil society organizations and the state in the process of drafting legal texts.

Such practice has been in relation to sporadically articulated views, and the dialogue between the state and civil service organizations could be described as informal and combined communications. Those were usually public advocacy activities, focused on the society and the government, in order to change or adopt laws and policies.

The key problem for civil society organizations was reflected in the fact that draft laws were kept secret until the time when they were decided on at a government session or when they were published on governmental web pages, to be carried by the media.

That is why the possibility for civil service organizations to take part in the consultation process with the state are reduced to the very minimum, as their activities are limited to quick reactions and creation of media pressure in order to inform the public abut alternatives to current public policies and to force the state to change certain provisions.

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As the consultation process started in the preparation of new standards in communication between the state and civil society in the legislative process, as provided for in the “Implementation plan for the National Strategy for the Creation of an Environment Conductive to Civil Society Development”, one may expect more formal consultations between the state and civil society organizations. Namely, chapter 4 of the Plan entitled “Citizens’ participation in public policy design” clearly provides for the adoption of a code of practice for consultation and implementation.

Recommendations:

Associations:

- Define criteria for selecting external civil society representatives for different boards of the Croatian Parliament and advocate for such selection to be conducted by civil society organizations themselves;

- Civil Society Development Council should secure agendas prior to meetings, reports with conclusions after the meetings, and reports on meetings of selected civil society representatives with sub-sectors when so required by the topic, by establishing a mailing list of the sub-sector available to different civil society organizations, and ensure better communications within civil society in general and with the Council;

- A clear definition should be provide by civil society organizations of the exact meaning of the participatory consultation process between the state and civil society;

- Good practice of previous consultations should be analyzed prior to adoption of a Code of Practice for consultations between the state and civil society;

- New consultation mechanisms introduced by the Code should be evaluated after one year, for the purpose of drafting the final version of the Code, fully compatible with the actual capacities of civil society and state administration;

Government:

- The Government Office for Associations – better financial support of all the institutions should be secured, and civil servants should be trained for the consultation process with civil society;

- The Government Office for Associations should secure infrastructure for the Civil Society Development Council, for consultations with sub-sectors within civil society;

- For meetings serving as open debates on key issues, the Government Office for Associations should secure financial support (such as premises, travel costs, etc.) to ensure participation by civil society sub-sector representatives.

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References:

Bežovan, G. (2004) Civilno društvo [Civil society], Zagreb, Globus.

European Commission, Working Document of the Commission: Croatia – 2007 Progress Report, Brussels, November 6, 2007. SEC(2007)1431; COM(2007)663.

Franc, R., Šaki , V. Šalaj, B., Lali , D., Kunac, S. (2006) „Udruge u o ima javnosti: istraživanje javnog mnijenja s osvrtima“ [Associations in the public eye: public opinion research and analyses], Zagreb, AED

Komunikacijska strategija za informiranje hrvatske javnosti o približavanju RH europskim integracijama [Communications strategy for informing the public on Croatia’s progress towards European integration], Parliament of the Republic of Croatia, January 26, 2006.

Kunac, S. (2006) „Vrijednost vrednota: civilno društvo i hrvatska demokratizacija“ [The value of values: civil society and democratization of Croatia], B.a.B.e. Zagreb.

Nacionalna strategija stvaranja poticajnog okruženja za razvoj civilnog društva [National strategy for creating an environment conductive for civil society development], (2006), proposal, July 2006, Zagreb.

OECD (2006): Citizens as partners: OECD manual on information, consultation and public participation in implementation policy design [translation], Oksimoron, Zagreb.

Vela, A. (2007) „Sudjelovanje organizacija civilnog društva u zakonodavnom procesu u RH: Analiza stanja, problemi i preporuke” [Participation of civil society organizations in the legislative process in Croatia: analyses, problems and recommendations], GONG, Zagreb (working document).

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Serbia

Prepared by:

Group for promotion of women’s political rights Voice of Difference

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General Country Background

Following the dissolution of SFRY, on April 27, 1992, Serbia and Montenegro established the Federal Republic of Yugoslavia (FRY). The State Union of Serbia and Montenegro was declared on February 4, 2003, granting to the two republics greater competences than before. Following the referendum in Montenegro on May 21, 2006, it became an independent country and Serbia declared its independence on June 5, 2006. The key political issue in Serbia is the status of Kosovo, which made a unilateral declaration of independence on February 17, 2008, causing serious political tensions in the country. Serbia is located in the central part of South-east Europe.

The new Constitution of Serbia was adopted at a referendum in late October 2006 (the voting continued for 48 hours), and the Serbian Assembly proclaimed it on November 8, 2006.

Divisions among political parties, assassination of the prime minister and slow structural changes have led to a slow-down in reforms launched by the Government of Zoran Djindjic, following the collapse of Slobodan Milosevic's regime. Judicial reform is slow, Constitution and Constitutional Law allow for political influence over judicial appointments, and appellate and administrative courts are not yet functional.19 The state is still waiting or the Anti-discrimination Law, the Gender Equality Law, the Law on Civic Associations. Civil sector organizations and/or independent groups of experts have prepared these draft laws, often with no financial participation from the Government. Corruption runs through all the spheres of society and together with organized crime it is one of the greatest problems for the country.20

At the same time, religious communities – first and foremost the Serbian Orthodox Church – are ever more aggressive in their interference with state affairs, and the responsibility rests with the state which does not to prevent that, or rather, which instigates such processes.21

Three umbrella state strategies are the Poverty Reduction Strategy22, The Serbian National Strategy for EU Accession, and the Draft Strategy for Sustainable Development. Moreover, there are some 30 strategic documents in different areas, but the primary problem of their application is in the absence of harmonization among them insufficient coordination and unclear priorities of Government policies. Also, competent ministries do not have adequate capacities to plan, budget, monitor and assess them, nor a clear sectoral or inter-sectoral cooperation.

Today, Serbia is a polarizes community with no consensus on all the dominant social issues – such as war crimes, nationalist ideas and aims, state territories and interests, market economy, racism, xenophobia, gender equality, etc. Paradoxically, the public discourse is marked by trends from civic to nationalist rhetoric from one and the same political players, resulting in general confusion and apathy of the citizens. Constant conflicts of different ideologies destabilize individual and collective efforts to create fair democratic order and annul the citizens' desire to become active political subjects.

19 Commission staff working document "Serbia 2007 progress report", Enlargement Strategy and Main Challenges 2007-2008. 20 Of 163 countries, Serbia is 91st in terms of the corruption perception index – 2006 Transparency International Report. 21 Just one such example is the introduction of religious education in primary schools. Civil society representatives are very much against the growing religious fundamentalism and a Coalition for a Lay state was initiated by Women in Black and four other organizations in Belgrade with support from across Serbia. A coalition was also organized against the Law on Churches and Religious Communities, against clerical domination of society, and in favor of preserving a lay state. 22 In 2006, 8.8% of Serbia’s population was defined as poor, as their consumption per unit was, on average, below the poverty line. Source: http://www.prsp.sr.gov.yu/kolikoje.jsp

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Position of the Republic of Serbia in the EU Accession Process

The Stabilization and Association Agreement between Serbia and the EU was initialed on November 7, 2007,23 which was a huge first step in the accession process. Still, the actual signing of the agreement requires full cooperation with ICTY, which has not been established since four indictees are still at large, due to the absence of will of the authorities to extradite them. The EU Association Office was established on March 14, 2004, as a service of the Government of Serbia. Its competence includes preparation of documents allowing the Government to supervise, guide and coordinate activities of different ministries and special organizations related to EU association and accession, as well as the way in which the public is kept informed about these processes.24 The Office initiated the signing of a Memorandum of Understanding on EU Integration with NGO's, in light of their role in the process of democratization, as well as their rile in promoting European ideas and values, with the aim of further institutionalization of cooperation with NGO's in the EU association process, coordination of activities and providing citizens with regular information on EU accession.25

Serbia and the Civil Society

The process of creating democratic rule is a continuous promotion of political culture that assumes active participation of citizens and the civil society in creating institutions of democratic governance. Free election and indirect participation through political parties are insufficient for good democracy and the rule of law. The possibility of strengthening representative democracy is in developing civil sector's influence over the public and political arena, in promoting and developing direct participation of the citizens in political decision-making through civic initiatives, public advocacy, campaigning and referenda.

Representative democracy is built through participation in the work of governmental and parliamentary bodies, provided that “good procedures and mechanisms are provided/secured: clearly defined positions of responsibility (power), clear-cut powers of each structural segment/level, rules for decision-making, rules for adjusting differences among positions and opinions, transparency and availability of information, open (and supported) channels of communication, particularly among different structural levels.”26

Although civil society has a history of influential and visible political activism, there is still no free, guaranteed and open dialogue between state institutions and the civil sector. The research conduced by Strategic Marketing in 2005 indicates that a high percentage of interviewees were displeased with their relationship with the state which, in their opinion, either ignores the work of NGO’s or sees them as rivals: “11% of NGO’s surveyed has had no cooperation with state institutions, 55% have had local level cooperation and 45 % with the republic level.”27 Te NGO sector in Serbia faces daily problems such as “absence of appropriate legislation, disinterested state, withdrawal of international donors, underdeveloped donor policies in the private sector, non-stimulating legal and fiscal

23 http://www.seio.sr.gov.yu/code/navigate.asp?Id=127#69624 http://www.seio.sr.gov.yu/code/navigate.asp?Id=12425 http://www.seio.sr.gov.yu/code/navigate.asp?Id=1926 Ignjatovi ,T., J.Višnji , Izmedju uklju enosti i uticaja, Finalni izveštaj nezavisnog monitorisanje procesa izade Nacionalnog plana aktivnosti za poboljšanje položaja žena i unapre ivanje rodne ravnopravnosti (2006), Glas razlike. 27 NVO sektor u Srbiji, (2005), Gradjanske inicijative, Belgrade, p. 40;

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regulations, negative public perception, underdeveloped and insufficient cooperation within the sector and inadequate cooperation with the media, but also in most cases lack of interest of local self-governance to support NGO’s.”28 Lack of transparency of state bodies and absence of public control are directly related to results of reform processes, strategies and laws, and one of the principal tasks of civil society is to monitor the process and advocate adoption/changes of legislation and state policies.

On the other hand, there are new trends in planning processes by the state and its bodies, which are becoming more open to external influences and debates. NGO’s have been recognized as important partners in strategic processes at local and national levels, for example in the process of drafting the National Sustainable Development Strategy, National Action Plan for Children, National Strategy on Age or the National Youth Strategy. They have also been included in drafting sustainable development and socio-economic development strategies, local action plans for children and social policy plans in Serbian cities and municipalities.29

Also, the Vice Prime Minister’s team for implementation of the Poverty Reduction Strategy (the PRS team) initiated a program for Civil Society Contact Organization for implementation of the Poverty Reduction Strategy in Serbia (June 2007), aimed at developing organized mechanisms for communications and cooperation among the government and the NGO sector, facilitating recommendations and views of a wider civil society forum and allowing civil society organizations to be part of the key processes related to PRS implementation .30

The necessity to build strong civic awareness, which is a responsible partner in issues of public importance is one of the key tasks in designing national policies and it includes “citizen’s right of access to information, different issues of importance for the local community, promotion of dialogue between citizens and elected representatives, and the right of citizens to participate directly decisions of key importance for the future of the community”.31 An independent civil society and active citizens can change the society and positions of power and they can reconstruct traditional value systems. It is of essential importance that different social groups participate in designing public policies, in dealing with specific problems an improving the situation in the community, because only the selected opinions may impact the society as a whole. The consultation process and public debates allow for an opportunity to look at the complexity of the problem and the different possible solutions. Creators and implementers of future policies and strategies thus have an opportunity to argument their concepts and seek public support. Analyses of options offered by different groups and in particular an assessment of their consequences through a discussion of all the stakeholders allows for the best solution to be proposed and adopted, and the entire process reflects a desire towards democratization and decentralization of decision-making and governance.32

28 Javno zastupanje u lokalnoj zajednici za poboljsanje položaja nevladinog organizacija (2006), Gradjanske inicijative , p.15.; 29http://www.prsp.sr.gov.yu/download/IzvestajPreporuke%20za%20ukljucivanje%20civilnog%20drustvau%20proces%20primene%20SSS.doc 30 http://www.prsp.sr.gov.yu/aktuelno/kocd.jsp31 Neposredno u eš e gradjana u javnom životu na lokalnom nivou, Nacrt dokumenta, SKGO, Belgrade, June 2006, p.14 32 Ignjatovi , T., S. Macanovi (2006) Ka politici i komunikaciji u ijem su centru gra anke i gra ani, Autonomni ženski centar, Belgrade (www.womwnngo.org.yu )

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Good and Bad Public Advocacy Practices

For years, one part of the Serbian civil society has been persistent in protecting and promoting human rights. For example, Humanitarian Law Fund has been helping ex-Yugoslav states in establishing the rule of law and accepting the legacy of massive human rights violations, in order to prevent their repetition, to establish criminal responsibility for the perpetrators and to see justice done.33 The Helsinki Human Rights Committee is a professional organization promoting the rule of law and protection of human rights and is a full member of the International Helsinki Human Rights Federation (IHF). The Yugoslav Committee of Lawyers for Human Rights (YUCOM) was established in November 1997 and is active in promoting the ideas and practice of observance of human and civic rights and freedom, dissemination of knowledge about them, providing legal aid to those whose rights are violated, developing cooperation with associations and organizations working on promotion of civic, political, human and trade union rights, etc.34 The Youth Human Rights Initiative (the Initiative) is a regional NGO with programs in Serbia, Kosovo, Montenegro, BiH, with a mission to protect victims of human rights violations, to establish new regional links among pos-war generations, and to include youth in the process of transitional justice by promoting truth about wars in the former Yugoslavia.35

There are numerous examples of public advocacy of the Serbian civil sector. This method of action is used for initiating new legislation or changing the existing one (such as the initiative to adopt the Law on Asylum and the Initiative for acceleration refugee integration in Serbia by Group 484 from Belgrade). This method is used for specific action to create a social climate that would allow for better living conditions for different social groups (examples include activities by the Macva county paraplegics’ association in Sabac, aimed at improving everyday life, referring to the basic right to freedom of movement by initiating local decisions to provide legal conditions for organized public transport as of 2015).

NGOs were an important factor in the October 2000 democratic changes, and then continued to contribute to legislation development in the post-Milosevic period (examples include laws on the position of persons with disability, Law on Access to Information of Public Interest, Law on Alternative Military Service, Family Law and provisions on domestic violence).

Campaigns follow different models – some are focused on direct mobilization of citizens and public action such as demonstrations, street rallies (such as women in Black: silent protests, memorial services for anniversaries of crimes, street performances), and some include petitions (such as declarations on Srebrenica, on women, peace, security, women’s issues, etc.). Starting from 2001, in collaboration with women’s NGO’s in 40 different towns in Serbia, Autonomous Women’s Centre has been organizing a national campaign against violence (as part of the international campaign “16 days of activism against violence against women”). There have also been campaigns which focused on media production – video clips, ads, jingles 9such as Voices can do anything campaign, organized by Civic Initiatives and aimed at improving civic activism and mobilizing voters to vote at the 2007 parliamentary elections).

33 http://www.hlc-rdc.org/srpski/O_nama/index.php34 http://www.yucom.org.yu/SrpskaVerzija/KomitetPravnika.asp35 http://www.yihr.org/about_us.php?lang=_bhs

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Analyses of Rules of Procedures and Laws

An overview of current legislation in Serbia provides for an insight into provisions regulating adoption of laws, decisions and policies, as the framework for possible participation or control of these processes by the civil society. Possibilities and restrictions contained in legislation can be seen through basic principles proclaimed by the Constitution of the Republic of Serbia, as well as the very process of proposing and adopting laws and regulations, procedures for assessment of constitutionality and legality of regulations on openness of the Government and the National Assembly, with an overview of its boards, committees and other working bodies within them Specific forms of civic expression are referenda and popular initiatives, and other forms of direct participation in local self-governance. Introduction of a People’s Advocate and Information Commissioner has, in addition to current options provided by the Public Information Law, led to improvement of these processes in Serbia, with a proviso that this is merely an introduction and an initial step in developing democratic and anti-discriminatory practices.

Basic Principles Promoted by the Constitution

Basic principles of the Constitution define citizens as holders of sovereignty in the state, exercised through referenda, popular initiatives and freely elected representatives. Citizens are guaranteed the right to be informed on issues of public importance and right of access to data held by state bodies and organizations entrusted with public powers. Legally competent citizens of Serbia of legal age have the right to elect and stand at elections. The election right is general and equitable, elections are free and direct, and voting is secret and in person.

Citizens have the right to take part in public affairs management and to enter into public service and office under equal conditions, as well as the right to regional autonomy and local self-governance, exercised directly or via their freely elected representatives. Everyone enjoys a guaranteed right to send, individually or with others, petitions and other proposals to state bodies and organizations entrusted with public powers, and to receive an answer from them. No one may suffer any damages on the basis of petitions or proposals submitted, unless such action amounts to a criminal offence. Individual actions or actions by state bodies or organizations entrusted with public powers which violate or deny human or minority rights or freedoms guaranteed by the Constitution may be subject to a constitutional appeal, if all the remedies have been exhausted or if none have been provided for their protection.

Process of Adoption of Laws and Regulations

1. Proposing and adopting laws, regulations and general acts

The Constitution provides that people’s delegates; the Government, assemblies of autonomous provinces and no less than 30,000 voters have the right to propose laws, regulations and general acts. People’s Advocate and the National Bank of Serbia have the right to propose laws within their competence.

1.1. Analysis of the Rules of Procedure of the National Assembly of Serbia

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Organization and work of the National Assembly are regulated by the Rules of Procedure of the National Assembly of Serbia,36 and special provisions regulate procedures for adoption of laws and other acts. The National Assembly may adopt laws, the budget, development plans, spatial plans, final accounts, and rules of procedure, declarations, resolutions, recommendations, decisions, conclusions and authentic interpretations of documents it has adopted.

Legislative proposals: an authorized proponent files a proposal with a justification which must contain: constitutional basis, reasons for adoption, explanation of basic legal categories and individual provisions, an estimated cost of implementation, overview of provisions which may be changing. As a rule, the proponent also cites the legal basis in EU legislation and generally accepted rules of international law.

The Speaker distributes the proposal to the delegates, competent committees and the Government, if the Government is not the proponent.37. The proposal is first discussed in general, and then in detail. Between the general discussion and a detailed one, competent committees may submit amendments to the proposal. On the day of the vote, the National Assembly decides on proposals in principle, in detail and on the whole. If the proposed act is accepted in principle, the National Assembly decides on amendments, and then votes on the proposal as a whole. Immediately and no longer than two days following the adoption, the Speaker submits the law to the President of the Republic, to proclaim it by decree.38

Civil society organizations have the possibility of informal influence over authorized proponents during the public debate or through lobbying. Within their activities, autonomously and/or in collaboration with international organizations, civil society organizations prepare their own draft laws, for which they lobby with authorized proponents (usually relevant ministries, committees or caucuses in the National Assembly). An example of successful lobbying is the Law on Prevention of Discrimination against Persons with Disabilities, prepared by the Belgrade Centre for Comparative Law and adopted on April 17, 2006, whereas an example of unsuccessful lobbying (which has been going on since 2003) is the Law Against Discrimination, drafted by the same organization.39

Rules of Procedure of the National Assembly provide for the establishment of committees and boards as working bodies of the Assembly with different competences. Boards are established to consider issues within the competence of the National Assembly, to propose documents and to consider policies, implementation of laws, other regulations and general acts of Government of the Republic of Serbia.40 Boards may, subject to invitation, include different experts or scientists. While working on specific issues within their competence and preparing proposals in relation to them, a working body may establish working groups, which may include scientists and relevant experts.

36 www.parlament.sr.gov.yu ; http://www.parlament.sr.gov.yu/content/cir/akta/poslovnik/poslovnik_1.asp37 Proposal prepared in compliance with the Rules may be submitted for the agenda of the Assembly no later than15 days and no longer than 60 days from its adoption. Boards and the Government submit to the Assembly its opinions and reports no later than 5 days prior to the session when the proposal is to be considered. 38 Rules of Procedure contains provisions for ratification of treaties and other agreements and for summary adoption of laws. 39 The Liberal Democratic (opposition) caucus submitted the proposal in late 20007 However, in 2006 the Ministry of Labor, Employment and Social policy, in collaboration with UNDP, prepared the same draft which was sent to the Venice Commission for assessment in 2007, so that this one is likely to be supported by the National Assembly, rather than the draft prepared by the Centre for Comparative Law and the Anti-Discrimination coalition.40 Standing committees include the committee for constitutional matters, the committee for legislation, for judiciary and administration, for inter-ethnic relations, for health and family, for applications and proposals, for poverty reduction and for gender equality

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National Assembly boards invite tot heir regular sessions or round tables representatives of civil society, usually in collaboration and with support from international/intergovernmental organizations (such as UNDP, Council of Europe, OSCE Mission, etc.). For example, in 2006, the EU Integration Board invited NGO representatives to its 6th session (September 14, 2007) to discuss the Draft Law on Associations, and the Gender Equality Law organized a round table on the topic of violence against women (November 27, 2007), which included representatives of relevant ministries as well as representatives of women’s NGO’s.41

In 2005, as the proponent of the Gender Equality Law, the Gender Equality Board established a working group to work on the draft, which included only the relevant expert (law school professors), whereas lobbying was conducted by the Center for Modern Skills NGO from Belgrade. The Law was submitted for parliamentary procedure in 2006, but was then removed from the agenda and has not been adopted until today.

Rules of Procedure also contain provisions that guarantee public sessions and presence of the media (sessions are shown live on RTV Serbia channel 2).

1.2. Referenda and popular initiatives

Pursuant to the Constitution and law, the National Assembly may organize a referendum on issues within its competence, upon request of majority of its delegates or no less than 100,000 voters. Serbia has a special law on referenda and popular initiatives. Citizens vote at referenda to decide on issues prescribed by the Constitution and by law, as well as issues within the competence of the National Assembly, assemblies of the autonomous province, municipality or town, as decided by the Assembly. The law sets the possibility for citizens to propose amendments to the Constitution or changes to laws, other regulations and general acts, organization of referenda on specific issues and other proposals in compliance with the Constitution, law or statute (popular initiative)42. Subject of a referendum may not include commitments arising from treaties, laws related to human or minority rights and freedoms, taxation and other financial laws, budgets and final accounts, introduction of a state of emergency or amnesty, as well a issues related to election competences of the National Assembly. A referendum is valid if most of the citizens on the voter register voted, and a decision on the issue is considered adopted if voted in favor by the majority of such citizens.

In the case of popular initiatives, an initiating board may establish special boards for collection of signatures, it submits the proposal to the body competent to adopt acts or decide on the issue in the proposal, in order to inform it that signatures are being co elected. If the competent body refuses the proposal, it is obliged to inform the initiating board. If the initiating board believes that the competent body acted incorrectly it may file an appeal with the Supreme Court. Citizens participate in popular initiatives by signing relevant proposals.

In 2004, women’s organizations submitted to the National Assembly a civic initiative entitled In our name with 18,200 signatures by citizens43 of Serbia, requesting

41http://www.parlament.sr.gov.yu/content/cir/aktivnosti/skupstinske_detalji.asp?Id=1317&t=A http://www.parlament.sr.gov.yu/content/cir/aktivnosti/skupstinske_detalji.asp?Id=1417&t=A42 Citizens with election rights and residence in the relevant territory may vote at a referendum. Citizens have the right o object against irregularities in procedures of the referendum, as well as to indicated shortcomings in popular initiatives procedures. Referenda and popular procedures allow citizens to express themselves freely and no one may be called to account for any opinion expressed n it or for participating in it.43 It should be noted that the FRY Constitution provided that a civic initiative may be submitted by 15,000 signatories, and the 2006 Constitution doubled the number, thus exacerbating the observance of legally prescribed procedures (collection within 7 days).

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annulment of the Law on Rights of Accused Persons Detained by ICTY and Their Families. The National Assembly refused the proposal and failed to observe the procedure (it failed to inform the initiating board). The Bebac parents’ association initiated a campaign to exempt baby food, clothing and care items from VAT, signed by 40,000 citizens of Serbia in just two days in early summer 2007. Although even the Ministry of Finance supported the proposal, taxation of baby items has not yet been decreased.

1.3. Analyses of Rules of procedure of the Government of Serbia

Pursuant to the Law on Government, the Government44 effects laws and other general acts adopted by the National Assembly, it proposes to the National Assembly laws, the budget, and other individual and general acts, it supervises constitutionality and legality of general acts, it supervises work of state administration bodies, it guides state administration in policy implementation and implementation of laws and other general acts, and it coordinates their work. Laws and other acts proposed by the Government to the National Assembly and the President of the Republic are prepared in form of drafts. The Government provides the National Assembly with opinions of proposals for laws and general acts submitted by other proponents, and Government representatives take part in the work of the National Assembly when adopting laws and other acts proposed by the Government. Acts adopted by the Governments are decrees and rules, decision, conclusions, as well as development strategies and declarations.

Pursuant to the Law on Government and the Rules of Procedure, the Government establishes boards45 and committees as permanent and ad hoc working bodies. President of a working body may invite representatives of other bodies and experts in different fields to present their opinions to the working body. Ad hoc working bodies of the Government may include councils, working bodies, expert groups, etc.

Public debates are mandatory in the preparation of laws that change an issue significantly or regulate an issue of particular importance for the public.

Once the draft law is on the proponent’s web page (usually a competent ministry), the public debate is considered to have begun. In some cases, the document is forwarded to the parties concerned by e-mail, and proposals for changes and amendments are received in the same way, whereas in some cases different meetings are organized – public debates with several hundred participants (for the Law on Civic Associations, for example) or a number of regionally distributed meetings. Civil society organizations of then assume the role of the organizer, and meetings are sometimes in form of presentations of draft laws or strategies, rather than public debates – or the participants come unprepared (because the invitation was sent too late, or they did not read the document) or the proponent and the organizers fail to plan for adequate discussion time, or fail to register all the comments and proposals. A good NGO strategy is to follow up on oral proposals with written ones, submitted to the proponent.

The Government is obliged to allow public insight into its work, pursuant to the law regulating free access to information of public interest and the Rules of Procedure of the Government. Public nature of Government’s work is secured by press conferences, Internet presentations, and public statements and by other means. As a rule, the Government responds

44 www.srbija.sr.gov.yu45 the Government has the following boards: legal system and state bodies, foreign relations, business and finance and public affairs; and the following committees: administration, personnel, housing, natural disaster damages assessment, allocation of official buildings and premises.

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to initiatives and complaints through state administration bodies. Rules of Procedure provide the rule that journalists and other representatives of the public do not attend sessions of the Government.

1.4. Public Advocate

This independent and autonomous state body protects the rights of citizens and controls the work of state administration, bodies competent to provide protection of property rights and interests of Serbia, as well as of other bodies and organizations, enterprises and institutions entrusted with public powers. The Public Advocate provides protection and promotion of human and minority rights, and he/she is accountable for his work to the National Assembly, which appoints and removes him/her. The Public Advocate does not have the power to control the work of the National Assembly, President of the Republic, the Government, the Constitutional Court, courts or public prosecutors’ offices. This body has the right to propose laws within its competence, to submit initiatives to change and amend laws and other regulations, to initiate adoption of new laws, to provide opinions on laws and regulations during their preparation, and to initiate proceedings before the Constitutional Court for assessments of constitutionality and legality. The Public Advocate initiates proceedings upon complaints from the public or upon his/her own initiative46 and submits to the National Assembly an annual activity report, which is published and forwarded to the media. Office of the Public Advocate of Serbia was established on December 24, 2007 but no deputies have been appointed yet and there have been no legislative initiatives.

1.5. Free access to information of public interest47

Law on Free Access to Information of Public Interest was adopted in November 2004. The Law establishes the right of citizens, the media and other parties to free access to information held by public authorities, unless it cannot be granted in order to protect a public or any other currently prevailing public interest or the right to privacy, in cases listed by the law.

In order to provide for the right to freedom of access to information of public interest held by public authorities, a Commissioner for Information of Public Interest was established as an independent and autonomous state body. The National Assembly appointed the Commissioner in December 2004.48

2. Assessment of constitutionality and legality, constitutional amendments

The Constitution regulates procedures for assessment of constitutionality and legality before the Constitutional Court, which may be initiated by state bodies, including the Government and the Public Advocate, bodies of territorial autonomy or local self-governance, no less than 25 people’s delegates, the Constitutional Court, as well as any legal or natural person, via an initiative to initiate proceedings for assessment of constitutionality and legality.49

46 If the Public Advocate finds a violation, and an administration body fails to act upon his/her recommendation, a public statement may be made to the media, the Assembly and the Government, and a recommendation can be made to call the head of the body to account. 47 www.poverenik.org.yu48 http://www.poverenik.org.yu/dokumentacija.asp?ID=6 49 Constitutional changes are decided on by the National Assembly, upon proposal of no less than one third of the total number of the delegates, President of the Republic, the Government and no less than 150,000 voters.

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Pursuant to its Rules of Procedure, the National Assembly considers notifications from the Constitutional Court on the situation and problems related to constitutionality and legality in Serbia, opinions and indications of the Constitutional Court that laws need to be changed or adopted or other action taken in order to protect constitutionality and legality. Speaker of the National Assembly submits a proposal of an authorized proponent to the Legislation Board and the Government, which consider it within a period no shorter than 15 days. If the Legislation Board deems it appropriate to consider provisions contained in the disputed legislation, it proposes to the National Assembly to consider the proposal, and to the Government or the competent ministry to prepare a proposal for a change or an amendment.

Communication Between Civil Society Organizations and the State:

Examples of Good Practice

In the process of implementation of the Poverty Reduction Strategy (PRS),50 one of the key principles is the inclusion of civil society in national and local implementation. With the intention of improving civil society involvement, the Vice Prime Minister’s PRS implementation team conducted consultations with civil society representatives in mid-2007, aimed at finding more efficient mechanisms for two-way information flow between civil society organizations and the Team, i.e. the Government.

The program design included the following parties:

1. Civil Society Contact Organizations (CSCO) 2. Program Implementation Unit (PIU)51

Civil Society Contact Organizations are organizations selected by a competition to represent each target group. The PRS recognizes seven areas of importance for poverty reduction,52 and within them it provides recommendations for improving the position of the following vulnerable groups:53 Roma (Roma Information Centre, Kragujevac), persons with disabilities (Centre for independent living of persons with disabilities, Belgrade), women (Autonomous Women’s Centre, Belgrade), the elderly (Snaga prijateljstva – Amity,Belgrade), refugees and displaced persons (Group 484, Belgrade), children (Society for Protection and Advancement of Mental Health of Children and Youth, Nis) and youth (Civic Initiatives, Belgrade).

Civil Society Contact Organizations bring together organizations of similar project orientation to work on joint initiatives for effective information exchange.

The PRS Team mediates in information exchange with 15 ministries engaged in the implementation of the Strategy (through CSCO contact persons in the ministries) and links CSCO with public sector stakeholders responsible for designing and/or implementing other national strategies and projects. The PRS Team also mediated in establishing direct cooperation between CSCO and the Central Project Team for Annual Operation Plans and the

50 The Poverty Reduction Strategy in Serbia is a mid-term development framework for reducing key forms of poverty. It is a nationaldocument which analyses causes, features and profiles of poverty in Serbia as well as key guidance for social development and reduction of poverty in the next few years. 51 Centre for development of the non-profit sector, tasked with providing support and harmonization of work of other organizations.52 Employment, social protection, position of pensioners and the elderly, health care, education, regional, rural and urban aspects of poverty and environmental aspects of poverty. 53 http://www.prsp.sr.gov.yu/download/Opis%20programa%20KOCD_lat.doc

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team leaders with relevant ministries, in the process of development of annual plans for 2008 and 2009.

CSCO program will continue for at least a year (until May 2008). The initial effects will be assessed in late January 2008 (external evaluation), and a possible continuation will depend on the “assessment of success of programs implemented and resources available”54 If all the results and circumstances are deemed positive, this will be one of the models of organized, defined, systemic information exchange between the state and the civil sector, with potential impact on public policy.

Conclusions and Recommendations

The work of independent NGO’s is difficult, as is the possibility of influencing public processes. Representatives of governmental institutions are not always prepared for an open and clear communication typical for civil society. Lack of transparency of state bodies and absence of public control will bear direct impact on reform process results, public policies, strategies and laws. That is why one of the key tasks of civil society representatives is, in addition to monitoring, public advocacy of adoption and/or changes of laws, as well as of state policies.

Despite considerable activities aimed at improving the quality of life of citizens, the civil society works under difficult conditions and it rarely succeeds in its advocacy initiatives. Radicalization and division of society is beginning to influence the civil arena and it contributes to its division. Some NGO’s refuse any kind of cooperation with radical political parties which play an important role in the government, whereas others try to act whenever and wherever possible and acceptable within the existing system, with varying success. Moreover, the public perception of NGO’s is mainly negative and that is why NGO’s fall under even more public pressure. Adding to it the lack of knowledge about the role and significance of civil society organizations as representatives of citizens and vulnerable groups in their relations with the government, as well as difficulties in securing financial assistance, one can speak of an environment where it is very difficult to advocate substantive reforms and anti-discrimination legislation.

Irrespective of the necessity to ensure continuous social dialogue between civil society and institutions, as referred to at the beginning, the driving force of civil action must always be shaded by a critical distance from all the social trends, phenomena and products. Otherwise, we will have a kind of “tame professional activism” which is no more than a partnership with the state, of purely formal and decorative nature.

On the other hand, we see domination of political discourse and presence of culture of insufficient promotion of possibilities and needs for participation in public life as the key reasons for the absence of citizen participation. At the same time, citizens demonstrate a low level of knowledge and awareness of their own rights, as well as of competences of different levels of governance. One of the key reasons of the underdeveloped “active citizenry” is, in our opinion, the inadequate political and legal framework for public life.

54 http://www.prsp.sr.gov.yu/download/Opis%20programa%20KOCD_lat.doc

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We believe that civil society action should be based on the following concepts:

1. Clear and clearly set criteria for methods and forms of cooperation between civil society and government;

2. Definition of what public nature of work of state bodies and institutions entails, particularly in the process of adopting polices and laws, and in the process of implementation and monitoring of their effects;

3. Definition and establishment of regular dialogue between civil society and the government;

4. It is particularly important to open a debate within the civil society in Serbia on participation and influence of these organizations on the legislative process and the policy adoption process in Serbia;

5. It is necessary to advance the existing level of knowledge among Serbian NGO’s on the legislative process and legislative advocacy, and the use of (in)formal mechanism, as well as other possible methods for influencing the decision making process;

6. There should be better cooperation and communication among civil society organizations, by establishing regular information and knowledge exchange, close cooperation among organizations within specific sectors and among sectors, as well as creation of an ambience conductive to inclusion and openness for all the organizations, with the aim of exerting greater pressure on the government.

7. Experiences of civil society organizations from the region should be taken into account when building a stronger position of Serbian civil society in the decision making process.

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References

Commission staff working document: Serbia 2007 progress report, Enlargement Strategy and Main Challenges 2007-2008.

Second report on PRS Implementation in Serbia, (2007), Government of the Republic of Serbia

Ignjatovi , T., S. Macanovi (2006) Ka politici i komunikaciji u ijem su centru gra anke i gra ani [Towards citizen-focused policy and communication], Autonomni ženski centar, Beograd (www.womwnngo.org.yu)

Ignjatovi ,T. J. Višnji , (2006), Izmedju uklju enosti i uticaja [Between involvement and influence]- final independent monitoring report on the drafting of the National Action Plan to improve the position of women and advance activities to improve the position of women and gender equality, Glas razlike, Belgrade

Transparency International Report for 2006

Javno zastupanje u lokalnoj zajednici za poboljšanje položaja nevladinih organizacija [Local community public advocacy to improve NGO position] (2006), Gra anske inicijative, Belgrade

Neposredno u eš e gradjana u javnom životu na lokalnom nivou - nacrt dokumenta [draft document on direct citizen participation in local public life], (2006), Stalna konferencija gradova i opština, Belgrade

NVO sektor u Srbiji [NGO sector in Serbia], (2005), Gra anske inicijative, Belgrade

Podrška ja anju uticajnog ženskog civilnog sektora, [Support for greater women’s civil sector influence, signed by:] potpisnice Autonomni ženski centar, Centar za ženske studije i istraživanja roda, Žene u crnom, Glas razlike, Rekonstrukcija ženski fond, June 23, 2006, Belgrade, p. 4 (www.womwnngo.org.yu)

Vesi A., S. Stojanovi , (2006) Pokrenimo zajednice: Priru nik za javno zastupanje u lokalnim zajednicama [Let us move communities – manual for public advocacy in local communities], Balkanski fond za lokalne inicijative, Beograd

Laws and regulations analyzed: Rules of Procedure of the National Assembly of the Republic of Serbia, Official

Gazette RS, No. 56/2005 i 81/2006 Rules of Procedure of the Government, Official Gazette RS, No. 61/2006 Constitution of the Republic of Serbia Law on Public Information, Official Gazette RS, No. 43/03 i 61/05 Law on Local Self-Governance, Official Gazette RS, No. 9/02, 33/04, 135/04, 62/06 Law on Referenda and Popular Initiatives, Official Gazette RS, br. 48/94 i 11/98 Law on Free Access to Information of Public Interest, Official Gazette RS, No.

120/2004Law on the Government, Official Gazette RS, No. 55/2005 i 71/2005 Law on the Public Advocate, Official Gazette RS, No.79/2005 i 54/2007

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Prohibition of discrimination in

European Union legislation

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Introduction

Bosnia and Herzegovina (BiH), Croatia and Serbia are member states of the Council of Europe and are currently at different stages of association with the European Union (EU). This has launched different reforms of state and legislative structures and brought drastic changes to everyday lives of ordinary people. That is why it is important for the general public, and particularly for civil society organisations, to be actively involved in legislative reforms in BiH, Croatia and Serbia, both those which are under way and those which are being prepared. However, when speaking about human rights standards and prohibition of discrimination, there is no public debate on what they mean for citizens and for civil society and how are they to be interpreted and applied in local conditions and practices.

All the Western Balkan countries share a perspective of eventual EU membership55

Enlargement process is powerful tool for fulfillment of EU's strategic interests in stability, security, and conflict prevention. The present enlargement process covers few countries of the Western Balkans area, which have been given the perspective of becoming EU members once they fulfill the necessary conditions.

All countries of the Western Balkans have been moving forward towards the EU, albeit at different speeds. Croatia is engaged in accession negotiations with the EU, and has obtained candidate status. The EU is in the course of completing Stabilization and Association Agreements (SAA) with the countries of the region and economic integration with the EU is well advanced.

The Stabilization and Association Process (SAP) is a part of the EU enlargement process. It is the framework for the European course of the Western Balkan countries, BiH, Croatia, and Serbia all the way to their future accession.

Stabilization and Association Agreements

An important pillar in the process is the conclusion of individual SAA. These set out the common values and principles governing the relationship between the EU and each country.

Croatia is a candidate country for EU membership. It has signed SAA in 2001 and started accession negotiations in 2005. Bosnia and Herzegovina and Serbia are potential candidates for EU membership. Both have initialled SAA's by the end of 2007.

About this part of Guide

Our aim is to promote public debates prior to adoption of decisions important for the future of countries, which should be supported by the entire society, correspond with the context and needs of each country, be understandable and applicable in practice. We see this as a very important opportunity to avoid that legislative reforms that have to do with non discrimination and human rights are only sterile pieces of legislation with no impact on our societies.

55 Information about the enlargement process and the status of Western Balkan countries may be found at http://ec.europa.eu/enlargement/index_en.htm

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Therefore, this Guide is a source of information on: a) possibilities for legislative advocacy through EU principles of anti-discrimination and b) strategic litigation using the existing mechanisms available within the Council of Europe system, such as the European Court of Human Rights.

The aim is to strengthen existing and future anti-discrimination advocacy, and to monitor the application of laws, offering no solutions or prescriptions, but rather providing information.

The Guide is thus divided into two sections:

I European Union (EU) – anti-discrimination standards in the EU – possibilities for legislative advocacy

II Council of Europe (CoE) – CoE mechanisms and possibilities for strategic court case management

I EU – anti-discrimination standards in the EU – possibilities for advocacy

1. Background on the European Union56

1.1 Some history

The European Union (EU) is the political and economic supranational community of 27 European countries. It is the result of a process initiated more than 50 years ago, in 1951, when six countries57 signed the Treaty of Paris establishing the Coal and Steel Community, followed in 1957 by the most famous Treaty of Rome instituting the European Economic Community and another treaty instituting the European Atomic Energy Community.58

Created with the basic aim of establishing a common market, the three Communities, better known as European Community59, evolved in more than fifty years toward a system of political integration, in which the common market became a space guaranteeing freedom of movement for people, goods, services and capitals, specific roles in the areas of foreign policy, home affairs and justice, and with a common currency.

This evolution gave birth to a sui generis supranational system in which member states progressively delegated to the common institutions powers and jurisdiction. This process of integration also coincided with the process of enlargement, with new member countries joining the Union: today almost 500 millions people are citizens of the EU, and the next frontier of the process of enlargement will precisely regard the Balkans.

Through the EU, its member states also exercise their shared interests, which include peace and prosperity, economic and social development, and protection of rights and interests of its citizens. However, EU member states remain independent, sovereign states, although they do

56 More on the EU at: http://europa.eu/index_en.htm or at http://www.entereurope.hr/page.aspx?pageID=1457 France, Germany, Italy, Belgium, The Netherlands and Luxembourg 58 EURATOM. 59 European Community (EC) – this term was used for the overall integration until the Treaty of the European Union, i.e. the Maastricht Treaty came into force in 1993. This term included the three Communities established by the Treaties of Paris and Rome. The full name of the Community was European Communities, and it included the European Coal and Steel Community, the European Economic Community and the European Atomic Energy Community. Since 1967, official terminology of the EU uses the term Community to denote all three.

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pool their sovereignty in order to achieve power and international influence that no state would attain individually.

The legal foundation of the EU is constituted by a serie of treaties (see below) that have been signed and ratified in the past fifty years, but particularly in the last twenty years, when the European political integration took place. Precisely because of its peculiar development, its legal system and the balance between sovereignty of member states and either exclusive or concurrent jurisdiction of the EU in many areas, such as foreign policy, currency, immigration, traditionally belong to states, the European Union is a unique supranational system, much different from other supranational institutions we know.

The goals of the EU

The EU rests on three pillars, which are a combination of integration and intergovernmental cooperation:

1st pillar – integration of member states through the three communities, including, inter alia, economic and monetary union, single market, EU citizenship, immigration and asylum policies, competition and consumer protection policies;

2nd pillar – Common Foreign and Security Policy, that has to do, among others, with human rights, democracy and foreign aid;

3rd pillar – Police and Judicial Cooperation in Criminal Matters.

When the Treaty of Lisbon will enter into force, the existing treaties will be amended in a more consistent and uniform way. The Treaty of Lisbon makes the Charter of Fundamental

Rights of the European Union legally binding.

1.2. Sources of law of the EU

1.2.1. European legislation

Sources of EU law are divided into:

1) primary sources, that is to say the treaties, that constitute its “constitutional law”. These, like any other treaty, are international law instruments, and need to be signed and ratified by member states. The most important treaties are:

- Treaty of Rome: together with the Treaty of Paris (1951) and the EURATOM

Treaty, the Treaty of Rome establishing the European Economic Community

is the foundation of the European Community, then EU. It contains some antidiscrimination provisions, mostly related to the needs of the common market;

- Treaty of Maastricht: signed in 1992, it creates the European Union and its three pillars;

- Treaty of Amsterdam: signed in 1997, it significantly amends the Treaties of Rome and Maastricht. More importantly, it introduces a very important antidiscrimination principle (see below);

- Treaty of Nice: adopted in 2001, it modifies the previous treaties;- Treaty of Lisbon: signed in 2007 (and expected to enter into force in 2009), will

be the “Reform Treaty” of the European Union;

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- Charter of Fundamental Rights of the European Union: adopted in 2000, it is a declaration of civil, political, social, economic and cultural human rights, and is expected to become a binding human rights instrument in 2009 (with the Treaty of Lisbon).

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2) secondary sources, that are adopted by the EU institutions and, most importantly, derive from treaties. Some secondary sources are directly binding for member states: this is one significant peculiarity of the system. These sources of law are, in fact, supra-national, but must nonetheless take into account national sovereignty of member states. This is a totally new and unique phenomenon in international law, and EU law is the term commonly used to describe it.

EU law includes60:

- Regulations – rules of general application. Directly applicable and applied in all the EU member states, with no exception. Each member state is required to harmonise its national legislation with them. Regulations are binding even if are not implemented into national legislation, and, they are fully compulsory in each of their element.

- Directives – oblige member states to implement them into national legislations in a given period of time and each member state is allowed a choice of method of implementation and they are binding in the objectives. Any new law a member state may wish to introduce must not be contrary to any directive, or the member state may be subject to judicial supervision or sanction. Directives are the most important tools used to introduce antidiscrimination principles.

- Decisions – rules with no general application in member states, but directly binding and compulsory for the addressee, either individual governments or citizens.

- Recommendations – non-binding legal acts expressing views of EU bodies on a particular issue.

- Opinions – non-binding legal acts aimed at achieving common policy.

The process of any EU law adoption includes a very strict procedure. Upon adoption of a piece of EU law, it is published in the Official Journal of the EU, in all its official languages.

Other indirect sources of law include judgements of the European Court of Justice which are an important part of EU law, particularly when it comes to interpretation of certain provisions of EU founding treaties, general principles of the EU, secondary sources, as well as treaties the EU entered into with other states, and international treaties of EU member states.

1.2.2. Institutions and decision-making

The EU is authorised to make decisions and it does so through its key institutions. The success of the EU is based on its unique model of cooperation among these institutions

These institutions are:

60 Guide for exercising protection before different EU institutions available at

http://www.bankwatch.org/guide/complaint_mechanisms.pdf

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I - European Parliament,

II - Council of the European Union,

III - European Commission and

IV - European Court of Justice.

The institutions are created by the EC Treaty. Institutional competences are defined by the treaties.

In addition to these, the EU also has a host of other executive or consultative bodies.61

The decision-making procedure with in the EU is much more complex than in any single member state, because there is no clear line of division of competences of the legislative, executive and judicial powers, and those competences often overlap. The reason for this is that member states are part of the decision-making process through the Council.

Decision-making procedures include the three principal institutions:

I. European Parliament – It represents citizens of the EU, whose representatives are elected directly at national level. Parliament in its legislative, financial and supervisory powers, and has the decisive role in appointing the President and commissioners of the European Commission. All the decisions of the Parliament must be reached by a simple majority. The European Parliament is the only institution in Europe whose debates and sessions are all public, and its members are not grouped by national delegations. The seat of the Parliament is in Strasbourg.

II. Council of the European Union – (Also known as the Council of Ministers or just the Council). This is the principal legislative institution of the EU. It is made up of ministers from governments of all the member states, and this is the European level institution where national interests are represented. In many areas, the Council shares its legislative powers with the Parliament. Although it does not decide autonomously in many areas, the Council cannot be omitted from any decision of legislative nature.

Key powers of the Council include adoption of EU legislation, coordination of wider economic policies of member states, international treaties between the EU and one or more states, or with international organisations, approval of the budget, etc. In its legislative function, the Council may decide unanimously, by simple majority or by qualified majority.

III. European Commission – It constitutes the “executive power” of EU and represents interests of the EU as a whole. The term of office of the commissioners is five years, confirmed by the European Parliament. Although members of the Commission are proposed by national government, they are obliged to act impartially and in compliance with interests of the EU, to be fully independent from any interests of governments which nominated them. The key area of work of the Commission is to prepare proposals for acts ultimately decided upon by the Council of the EU, the Parliament and the European Council, and to supervise their implementation, as well as to represent the EU in international relations. In principle, the

61Such as the European Council, Economic and Social Council, etc. As for its monetary policy, some of its decisions are made

autonomously by the European Central Bank.

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Commission has the sole right to propose new legislation, whereas the Parliament and the Council decide on adopting or rejecting its proposals.

IV. European Court of Justice62

- The European Court of Justice secures uniform interpretation and application of EU law. It is competent to interpret and develop European legislation and to decide in cases between member states and citizens whose rights have been violated by a decision of an EU body. The Court protects the legality of the EU, it controls the work of its bodies and provides direct protection of interests of member states, legal and natural persons. It exercises constitutional, administrative and civil jurisdiction, and in its judgements it always applies only the EU law, and never national. This Court also expresses its views on the (lack of) harmonisation of national legislation with European law, and it is often consulted by national courts in matters related to interpretation of EU law. Although it has no mechanisms of enforcement available to national judiciaries the decisions are binding, and if the member states are in violation sanctions may be established. The European Court of Justice is the “judiciary power” of EU and it has established itself as the key authority in ensuring application of EU law. Its seat is in Luxembourg.

How does the Court works?

The European Court of Justice comprises one judge from each member state (current total of 27) and eight counsels, of whom five are always from France, Germany, the UK, Italy and Spain, whereas the other three rotate alphabetically. They are appointed by member states, from among distinguished and recognised legal experts, and their term of office is six years. The President of the Court is appointed for a term of office of three years, subject to re-appointment. The President allocates cases to chambers, appoints a judge-rapporteur for each case, determines a schedule of hearings and decides on urgent requests for provisional measures.

Legal counsel are obliged to present impartially, independently and publicly any conclusion on a case submitted to the Court, in order to assist the Court in discharging its duties. Every year, the Court appoints one counsel to decide on distribution of cases from the moment the President has appointed judge-rapporteurs.

All the judges and legal counsel are assisted by two rapporteurs of their choice. Rapporteurs are lawyers who examine and prepare case files.

The Court sits in plenary or in smaller groups, i.e. chambers, which decide on specific types of cases. Judges are independent from their respective countries and their independence is guaranteed by their status. Deliberations are confidential and judges enjoy immunity which protects them form criminal prosecution during their term of office.

Due to the case-load of the European Court of Justice, in 1988 the EU established the Court

of First Instance of the European Communities. Until the 2001 Treaty of Nice, this Court acted as an extension of the European Court of Justice, rather than a separate court.

62 More on ECJ available at: http://curia.europa.eu/en/transitpage.htm

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European Union and Council of Europe - A short overview to understand the

differences.

The European Union and the Council of Europe are two separate and different organisations of European states. The Council of Europe should therefore not be confused with the European Union or its bodies (such as the Council of the European Union or the European Council).

The European Union (EU), as we said, is a unique community of 27 European states. The Council of Europe (CoE) is an international organisation of the greater European region with 46 member states. All the 27 EU member states are also members of the Council of Europe.

Laws of the EU (European law) comprises all the regulations applicable in the EU. They include regulations, directives, decisions, opinions, recommendations, etc. The European Court of Justice supervises observance and application of EU founding treaties and other European laws. The seat of the Court is in Luxembourg. Only countries and citizens of the EU may apply to it.

On the contrary, the basic document of the Council of Europe is the European Convention

on Human Rights and its 14 protocols, which provide standards of protection and methods of practical application of civil and political human rights across Europe. Key judicial institutions of the Council of Europe is the European Court of Human Rights in Strasbourg.

Example of differencies between EU and CoE in judicial powers

European Court of Human Rights European Court of Justice / Court of First

Instance

-Judicial body of CoE -Judicial body of EU

-ECHR and its 13 protocols -Founding treaties and other European laws

-In Strasbourg -In Luxembourg

-Applications may be submitted by citizens -Applications may be submitted by national

court judges on request of one of the parties or if

judge has doubts about application of the EU law

2. EU norms on prohibition of discrimination: principles and directives

The EU founding treaties63 did not deal with human rights and prohibition of discrimination in details. Originally, treaties just mentioned general prohibition of discrimination on the basis of national origin and establish the basic principle of non-discrimination between men and women in relation to equal pay. The rationale was that the Treaty of Rome was responding to the only exigence of the common market.

The most significant shift in terms of antidiscrimination criteria is constituted by the Treaty of Amsterdam, that modified article 13 of the EC treaty in the sense of establishing a principle of non discrimination. Article 13(1) reads:

63 Treaty of Rome Establishing the European Community and the Treaty of Maastricht.

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Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Article 13 has been a key provision for the development of antidiscrimination legislation in European law based on the Council’s competence to establish the basis for protection from discrimination at the level of the EU, whereas practical implementation was left for further elaboration in member states’ legislation.

The Charter of Fundamental Rights of the European Union establishes an important principle of non discrimination that, once the Charter will become a binding instrument, will be one of the pillar of non discrimination EU legislation and policies. Article 21 reads:

1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.

Numerous directives adopted so far prohibit discrimination on different grounds and oblige member states to harmonise their legislation with the principle of equal treatment and standards of protection established in such anti-discrimination directives, including changes of different laws and regulations.

These directives also oblige the states to establish efficient judicial and administrative procedures for protection of discrimination, equally accessible to all, including procedures for reconciliation and introduction of relevant sanctions.

Although directives on equal opportunities between men and women were approved and implemented before the introduction of article 13, the EU antidiscrimination framework is a consequence of article 13 itself, which in fact constituted the basis for the three key antidiscrimination directives we will consider in detail below, that is to say:

- Directive 2000/43/EC on the application of the principle of equal treatment respective of racial or ethnic background;

- Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation;

- Directive 2006/54/EC on implementation of principles of equal opportunities and equal treatment of men and women in relation to employment and occupation (edited text).

We include below information of help in further examination of European standards and mechanisms for protection from discrimination.

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2.1. Basic standards and definitions in directives – key concepts for discussion:

Equal treatment – is a rule which means legally, practically and essentially equal treatment of all persons or groups in identical or comparable situation, irrespective of any possible differences in their features or identities. Different treatment of persons and groups in certain situations is permitted only as a limited exception.

Discrimination – direct and indirect discrimination is prohibited. Discrimination in EU law is defined as follows:

a) Direct discrimination – exists when a person, or group of persons is treated differently or less favourably in comparison with another in a similar situation.

b) Indirect discrimination – exists when a seemingly neutral provision, criterion or practice applicable to all places one person in an unfavourable position or under unfavourable treatment, or has damaging effects for members of a group when comparing their position with the position of members of another group in the same or comparable situation. Introduction and existence of such provisions, criteria or practice is prohibited, but directives allow for the establishment of exceptions, with application of very strict conditions and only if the introduction of such measures is objectively justified in order to achieve a legitimate aim and by using appropriate and necessary means to achieve it.

c) Harassment – entails unwanted behaviour towards a person due to any specific ground of discrimination with the aim or the consequence of violating the dignity of such a person, and the creation of an environment which intimidates, degrades, is hostile or aggressive towards such a person. Harassment is a form of discrimination and it is prohibited.

d) Sexual harassment – any form of unwanted verbal, nonverbal or physical behaviour of sexual nature with the aim or consequence of violating the dignity of that person, particularly with the aim or creating an intimidating, hostile, degrading or offensive environment for the person subject to sexual harassment. Sexual harassment is prohibited.

e) Order to discriminate – instruction to discriminate given generally by a superior for any reason protected by the principle of non discrimination is prohibited.

Scope of application - means the field of application of the directives, such as employment and occupation, education, social protection, social security, healthcare, good and services, etc. including prohibition of discrimination in public and private sectors.

Grounds for discrimination – real, attributed or assumed feature or identity of a person or a group, based on which such a person or group are discriminated against or treated differently. EU directives prohibit discrimination based on race, ethnicity, religion, belief, disability, age, sex, sexual orientation.

Multiple discrimination – individuals may have multiple features or identities, such as age, sex and gender, sexual orientation, ethnic background, religion etc. One person may suffer discrimination in relation to several identities or features. Recognition of multiple discrimination is particularly important because the effects of discrimination based on more grounds is not simply the sum of the effects of discrimination on each ground.

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Is there an equality or non discrimination principle in your Constitution? Does it cover formal or substantive equality? Is there in domestic legislation a clear definition of discrimination, both direct and indirect? Is it in compliance with EU directives? Is there a legally prescribed discrimination test which facilitates definition of discrimination? Is the list grounds for discrimination contained in the Constitution or in domestic legislation comprehensive, or should it be expanded, or be left as non-exhaustive? How is in your domestic legislation defined scope of application? What does that include? Are there definitions of harassment and sexual harassment in domestic legislation, and have they been harmonised with EU directives? Are there any court cases related to it and what is the position of courts? What is the public perception of harassment and sexual harassment? Does the definition of harassment include all forms of harassment appearing in practice? Is there legal or other support to persons subjected to harassment or sexual harassment?

Positive actions – are measures to compensate or remedy the consequences of prolonged, and sometimes even historical discrimination that groups have been, or continue to be exposed due to a feature or identity. For example, introduction of measures allowing greater number of enrolment for minority students (such as Roma) to universities, in form of enrolment quotas or favourable scholarships.

EU legislation differentiates between hard and soft measures of positive discrimination. Soft measures include steps which bear indirect impact on groups in a more (or less) favourable position and include additional efforts by, for example, employers or service providers. On the other hand, hard measures bear direct impact on groups in a more (or less) favourable position, as indicated in the paragraph above.

As positive discrimination provides different or more favourable treatment of members of a particular group, such measures must be limited to a certain period of time, only until their aim has been achieved, or once members of a group have become equal to others. The EU legislation thus requires periodic examination of these measures and their effects.

Exceptions from the rule of equal treatment – in rare and limited circumstances

directives allow possibility to introduce exceptions from the rule of equal treatment, but only and exclusively with full observance of very strict conditions and in exceptional cases. Exceptions are established in a few cases:

a) In the case of exceptoion that provision, criterion or practice must be objectively justified by legitimate aims, and the means used to fulfil such an aim must be appropriate and necessary. Purpose of these exceptions is not to allow discrimination, but to strengthen protection against certain marginalised groups. b) Another exception, which is rather common also in some international conventions, is constituted by limitations required “for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others”; in these cases, however, the measures must be defined within the boundaries of what it is accepted in a democratic society.

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Genuine occupational requirement – different treatment in employment may be legally permitted also when differentiation is the only possible, real and decisive condition for a particular job or occupation; the aim of introducing such differentiation must be lawful and the conditions for fulfilling such an aim must be adequate. Such an exception is permitted only for certain jobs and occupations and they must be clearly indicated when advertising a vacancy, training or promotion.

Thus, for example: for a movie or an advertisement, the employment agency might need a specific kind of person, such as a man, or a woman, or a young (or old) person: in these cases, the exception is obviously admitted.

In other cases, exceptions are more sensitive: for example, for a position to work in an organization in which belief or religion are key characteristics, a specific belief (for instance political or other belief) or religion may be a requirement. However, this is not a general exception: while religion or belief might be requirements for leadership positions, they are not requirements for other technical/administrative positions (such as receptionist, driver, doorman, accountant); also, the requirement of a specific religious or other belief cannot interfer with other characteristics of the person, such as sexual orientation, civil status, or other characteristics that are still irrelevant.

Different treatment on the basis of age – EU directive 2000/78/EC64 allows for the possibility of different treatment on the basis of age, but such differentiation must be justified by a reasonable and objective aim, and the means used to fulfil it must be proportionate and necessary.

Reasonable accommodation – Directive 2000/78/EC requires an employer to take the necessary measures, as needed, in order to allow a disabled person access to employment, participation or promotion at work, or professional training, if such measures do not amount to “unreasonable burden” to the employer. Such a burden shall not be considered disproportionate if the state supports the employers by means of state policies for protection of persons with disabilities. Moreover, when determining such disproportionate burden, financial and other costs of introducing such measures are taken into account, as well as levels and availability of sources of financing for the employers, and particularly access to public funds and other forms of support.

This may include introduction of measures allowing disabled persons access to employment, participation or promotion at work, or attending job-related training. Thus, for example, in order to allow an employee to participate job-related training, the employer may provide a deaf employee a sign-language interpreter, or if an employee is no longer able to perform a production activity following a job-related accident, the employer may provide additional training and assign such an employee to office duties, or, for example, the employer may allow a blind employee who uses a guide-dog different working hours, to facilitate travel to and from work;

64Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, 27 November 2000.

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Are there in your legal system (laws, regulation, case law) exceptions to the principle of equal treatment? Who is monitoring the application of such exceptions? Are such exceptions limited to guarantee the effectiveness of the principle of equal treatment? Should there be changes in the current legislation regulating exceptions, or should their application be ensured by other means? Have measures of positive actions been introduced? Is there a need to introduce them? Are there general occupation requirements in the field of employment? Are they in conformity with the principles described above? What are the possibilities for employers to abuse their application? Has the state adopted measures to stimulate employers, financially or otherwise, to employ disabled persons? Do employers use such benefits?

Victimisation/Retaliation – discrimination of any person who has reported a case or initiated legal proceedings for protection against discrimination (even for a third party – such as a colleague) or has participate in or supported such proceedings (e.g. was a witness in such proceedings). It is prohibitied if an employee has been dismissed, demoted or has suffered another unfounded change in status, caused by the fact that he or she has initiated proceedings for protection against discrimination or has o otherwise participated in such proceedings. Victimisation is prohibited in European legislation and countries are obliged to introduce measures to provide legal protection from such position, treatment or procedure.

Does domestic legislation prohibit victimisation or retaliation? Are there any court cases in relation to this? Are trade unions or NGOs involved in monitoring, prevention and protection? Is there legal or other support to persons subjected to victimisation or retaliation?

Shift of the burden of proof – European legislation recognises how difficult it is for a victim or an injured party to prove discrimination. For example, there is often no direct evidence of discrimination, or statistics may be difficult to obtain, etc. That is why the principle of shifting the burden of proof was introduced, as it allows for the injured party to prove before a court or another competent authority (e.g. an administrative body) the facts which lead to an assumption that it was a case of different or less favourable treatment, direct or indirect discrimination. After that, the defendant has the duty to prove that there was no discrimination or violation of the principle of equal treatment. This principle is not applied to criminal proceedings.

Several instruments can be of help in gathering such facts, and they include: statistics, if available; test situation (deliberate establishment of a comparative group in order to prove different treatment); use of experts of different professions; video and audio recordings (if permitted by national legislation); reports by different organisations proving a pattern of behaviour or incidence of cases of discrimination, etc.65

65 An interesting source of information on this issue is available in the Manual for Lawyers on Representation of Roma – Victims of Discrimination [Priru nik za advokate o zastupanju Roma - žrtava diskriminacije] – European Roma Rights Centre, Fond za humanitarno pravo and Centar za prava manjina, September 2005, available at www.mrc.org.yu/publikacije/pub_s_09.pdf

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Also, the more recent European legislation does not require the injured party to prove that he or she belongs to a particular group which is subject to discrimination. This is particularly important in cases of discrimination on the basis of sexual orientation, but also in other, often very delicate cases of discrimination. It is thus not necessary to prove that a person is, for example, of particular sexual orientation, but rather just that it is probable that the person suffered less favourable treatment or harassment on the basis of how others see the person’s sexual orientation, or because the injured party was associated with persons known to be of particular sexual orientation.

Defence of Rights - directives also oblige the states to establish efficient judicial and administrative procedures for protection of discrimination, equally accessible to all, including procedures for reconciliation and introduction of relevant sanctions. In determining the scope of sanctions in cases of discrimination or breaches of principles of equal treatment, national legislations must take into account principles of efficiency and proportionality to the act committed, and sanctions must act as deterrents from further offences.

Compensation of damages – obligation of a state to introduce into its legal system the measures necessary to ensure real and effective compensation for losses or damages suffered as result of discrimination. The purpose of such compensation is deterrence from future discrimination, and its amount must be proportionate to the damages suffered.

Does domestic legislation treat discrimination as a criminal offence or a misdemeanour? Or is there civil liability? Are there judicial or administrative procedures in place? Are procedures favourable to the victims? How (short deadlines, precautionary measures)? Is there a possibility for reconciliation procedure among parties in case of discrimination? Does domestic legislation provide for a shift of the burden of proof? What is its application in practice? What kind of sanctions does the law establish? Is there a possibility of compensation for victims of discrimination? If so, what kind of damage is compensated? Are there court cases related to discrimination? Is there legal or other assistance to victims of discrimination?

Legal standing – European legislation allows for associations, organisations (such as NGOs) or other legal persons (such as trade unions) with legitimate interests to act either on behalf or in support of a victim of discrimination, with his or her consent, to take legal action and represent such a person in any judicial or legal case related to discrimination. Domestic legislation of all states regulates the term “legitimate interest” in greater detail. However, according to EU law, both labor organizations and other NGOs have to have legal standing.

Does domestic legislation allow civil society representatives to be included in the proceedings and to represent victims of discrimination? How? Which organization is allowed to stand? Does domestic legislation define the notion “legitimate interest” and if so, how?

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Is there a law on legal aid and is the state involved in financing legal aid in cases of discrimination?

Social dialogue – refers to debates, consultations, negotiations and actions taken jointly by social partners (employers and employees, or employee organisations). There are two recognised forms of such for a, bipartite and tripartite debates, consultations, negotiations or action. Bipartite ones include employer and employees organizations, whereas tripartite ones include government representatives at European or national levels.

Such dialogue is of great importance in defining European standards. Recent anti-discrimination directives oblige member states to initiate and promote dialogue among social partners, in order to stimulate the application of equal treatment and prohibition of discrimination through, for example: monitoring job situations, collective agreements, codes of conduct, research, exchange of good practices, etc. Member states are also obliged to motivate social partners to enter agreements defining and specifying anti-discrimination rules as set by directives, particularly in areas covered by collective agreements.

Dialogue with NGOs – European legislation invites states to promote principles of equal treatment through dialogue with NGOs which have legitimate interests in combating discrimination.

Dissemination of information – state is obliged to ensure that measure taken pursuant to directives together with provision already inforce regarding anti-discrimination are brought to the attention of all persons concerned by all suitable means.

Is there social dialogue and what is its practical role? What is the role of trade unions? How civil society is involved in dialogue to prevent and combat discrimination? Does the govermant disseminate informations on taken measures as is obliged by directives? Does the government facilitate dissemination of information through civil society (trade unions or NGOs), for instance by granting funds?

Specialised national bodies for ensuring equality or centres for protection of equality or

other equality bodies – in order to advance the level of protection from discrimination, European legislation requires the establishment of one or more bodies for provision of practical assistance to victims of discrimination, or a special department within a body dealing with general protection of human rights. These bodies are also competent to conduct independent research and publish reports in order to build an understanding of the issues and offer recommendations for solutions to problems caused by discrimination. Due to importance of this issue there is a specific section on specialised equality bodies later on in the Guide.

Are there specialised national bodies for ensuring equality? Is the independence of such bodies ensured and how: for example: salaries, method and period of appointment, sources of financing, who the bodies report to on their work and other issues?

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What are the competencies of such bodies and what are their possibilities for action? What ground of discrimination do they cover? What is the standing or influence of such bodies on the public opinion? What is the influence of such bodies on the state?To what extent are such bodies involved in practical aspects of application of anti-discrimination legislation? Do they have quasi-judicial competences (for instance in the phase of conciliation, or in the drafting of opinions or decisions)?

Minimum requirements – EU legislation establishes that countries, with the excuse of implementing the directives, should not reduce the level of protection. If therefore the level of protection already in force is better than what established by the directives, those standards cannot be amended. Also, states may introduce more favourable provisions, as many European countries have done.

Are there situations in which the available standards of protection are better than what established by EU legislation? Which ones? How national standards fit with other international instruments (such as CEDAW, CERD, the Convention on the Rights of Disabled Persons, etc.)? How the implementation of the directives fit with other international instruments?

2.2. An overview of anti-discrimination directives

In order to give a clear overview of anti-discrimination directives, we divided them by grounds for discrimination according to the criteria of EU law, between directives prohibiting discrimination on the basis of:

sex and/or gender;racial or national origin; anddisability, age, religion and other belief, and sexual orientation.

a) Sex/gender/gender identity66

There are several EU directives on prohibition of discrimination on the basis of sex and/or gender adopted thus far.67 The first directive from 1975 dealt only with equal pay for men and women based on Article 141 of the edited text of the Treaty Establishing the European Community (Article 119 in the old numbering of the Treaty). Most of the subsequent standards contained in directives prohibiting discrimination based on sex evolved from these standards of equal pay for men and women, particularly dealing with prohibition of

66 Most of the directives related to prohibition of discrimination based on sex and/or gender available at http://ec.europa.eu/employment_social/gender_equality/legislation/equal_treatment_en.html and other details related to EU activities in sex/gender equality http://ec.europa.eu/employment_social/gender_equality/gender_mainstreaming/general_overview_en.html ; 67 75/117 EEC - Directive 75/207/EEC on approximation of the laws of the Member States relating to the application of principle of equal pay for men and women; 10 Februaryr 1975); 76/207/EEC - Directive 76/207/EEC on implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working condition; 9 February 1976); 86/378/EEC - Directive 86/378/EEC on the implementation of the principle equal treatment for men and women in occupational social security schemes; 24 July 1986; 97/80/EC - Directive 97/80/EC on the burden of proof in cases of discrimination based on sex, 15 December 1997); 2002/73/EC - Directive 2002/73/EC of the European Parliament and of the Council amending Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, 23 September 2002.

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discrimination at work and in relation to work, maternity leave, promotion, professional development, social security schemes based on employment-related benefit payments, etc.68

In 2006, the level of protection was increased and harmonized by Directive 2006/54/EC on implementation of principles of equal opportunities and equal treatment of men and women in relation to employment and occupation (recast).69 The purpose of this Directive is to simplify, modernise and improve EU legislation in relation to gender and sex equality, as well as to bring together relevant standards in compliance with directives adopted in 2000, which prohibit discrimination based on religious or ethnic background and general directive on work into a singe text. As of 2009, this directive will replace all others related to gender- based discrimination.

It also expands the basis for protection related to gender equality and prohibition of gender-based discrimination. Key ECJ judgements in several cases related to discrimination on the basis of gender-reassignment70 were of great influence in this, stating that “the principle of equal treatment of men and women cannot be limited to prohibition of discrimination based on the fact that the person is of one or the other sex.”In addition to expanding the basis for protection, new standards also prohibit:

- direct or indirect discrimination, including giving orders to discriminate against a person or a group,

- covers access to employment, including promotion and vocational training, working conditions, occupational social security schemes,

- harassment and sexual harassment, - victimization, - giving instructions to discriminate against an individual or a group,- secures the right to protection form discrimination through judicial and

administrative proceedings, - requires damage compensation, - shifting the burden of proof in judicial and administrative proceedings, - provides for the establishment of bodies for promotion of equal treatment and legal

aid for victims of sex/gender-based discrimination, etc. - requires legal standing for organizations with legitimate interest, - requires social dialogue and dialogue with NGOs.

b) Race and ethnic background

Directive 2000/43/EC71 on the application of the principle of equal treatment respective of racial or ethnic background, or the so-called “Race directive”, defines and prohibits discrimination in the public or private sectors on the basis of racial or ethnic background.

The directive also prohibits:

68 The directives thus prohibit discrimination on the basis of sex and/or gender in access to employment, self-employment or occupation, access to all types and levels of professional orientation, training or re-training, work and conditions of work, including pay and dismissal, membership and involvement in organisations of workers, employers or professional organisation. Subsequent directives expand these standards to prohibit sex-based discrimination in social security schemes including illness, disability, occupational hazards, retirement, unemployment or other social security schemes which include payment of monetary or other compensation belonging to the employee and whose payment is the responsibility of the employer, pregnancy and maternity leave; 69 Directive 2006/54/EC on implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupational (recast), 5. juli 2006. godine; Accessible with other documents related to gender equity and prohibition of discrimination based on sex on: http://ec.europa.eu/employment_social/gender_equality/legislation/legalacts_en.html;70 P.v S. And the Cornwall Council, K.B. v. NHS and the Health Secrtetary, Sarah Margaret Richards v. Labour Secretary;71 Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, June 28. 2000. More on discrimination based on raced or ethnic origin on http://ec.europa.eu/emplyment_social/fundamental_rights/legis

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- direct and indirect discrimination, - giving instructions to discriminate against an individual or a group, - harassment, - covers access to employment, including promotion and vocational training, working

conditions, membership of and involvement in an organisation of workers, employers, or professionals, social protection, including social security and healthcare, social advantages, education, access to and supply of goods and services, including housing,

- obliges the states to ensure protection from discrimination through judicial and administrative proceedings, proportionate and will deter from future discrimination, as well as compensation for the injured party of pecuniary and non-pecuniary damages,

- shifting the burden of proof, - provides for possibility of positive actions measures, - provides for the establishment of bodies for promotion of equal treatment and legal aid

for victims of racial or ethnic based discrimination, etc. - requires legal standing for organizations with legitimate interests, - requires social dialogue and dialogue with NGOs.

c) Religion and belief, disability, age and sexual orientation72

2000/78/EC - Directive establishing a general framework for equal treatment in employment and occupation73 is aimed at setting a general framework for combating discrimination based on religion or belief, disability, age or sexual orientation, particularly in the area of employment and selection of occupation, professional development and membership in trade unions and other organisations, in order to establish the principle of equal or equitable treatment in law and in practice.

This directive, also called ”Framewor Directive”, contains provisions similar to those in the so-called Racial Directive, related to definition and prohibition of:

- direct and indirect discrimination, including instructions to discriminate against or victimise a person,

- harassment, - covers access to employment, including promotion and vocational training, working

conditions, membership of and involvement in an organisation of workers, employers, or professionals,

- victimization and retribution, - provides for the possibility of introducing measures of positive action, - obliges the states to ensure protection from discrimination through judicial and

administrative proceedings, sanctions proportionate and will deter from future discrimination, as well as compensation for the injured party of pecuniary and non-pecuniary damages,

- shifting the burden of proof, - requires legal standing for organizations with legitimate interests, - requires social dialogue and dialogue with NGOs.

You can find comparative chart/check list comparing the 3 most important directives and their requirements in the annex of this Guide.

72 Page containing useful information in relation to this and other directives, as well as anti-discrimination activities of the EU:http://www.stop-discrimination.info/index.php?id=43;73

Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, 27 November 2000.

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3. Case study: best practices in the implementation of antidiscrimination principle.

3.1. Implementation of anti-discrimination directives in national legislations

The past few years have seen considerable improvement in the implementation of anti-discrimination directives in member states of the EU. Ten new member states were obliged to fully incorporate the standards contained in the directives prior to their date of accession, which resulted in adoption or amendment of a considerable number of national laws, and harmonisation of practices. The same will happen when Croatia, BiH and Serbia will join the EU (and it is happening for Croatia).

There are several ways to implement anti-discrimination standards into domestic legislation. So state can:

- harmonisation of existing legislation (like in Belgium or France) and - to adopt new separate law on anti-discrimination based on all the standards arising

from anti-discrimination directives. This approach was adopted by, for example, Bulgaria and Austria.

As described above, directives created what many scholars defined “hierarchy of protection against discrimination”, because, as described above, directives are not fully consistent in establishing standards of protections (such as, for instance, with reference to the scope of application or the jurisdiction of equality bodies). Most countries, however, chose to implement consistent and uniform antidiscrimination standards for ALL grounds of discrimination. The European Commission is in fact working to further amend the directives to offer the samestandards of protection regardless the grounds of discrimination.

What happens if States do not implement directives?

State has failed to apply the standards:

-general/formal if the directive is not implemented or is implemented partially and

-substantive if the domestic law does not meet the criteria established by the directive.

In those cases European Commission may initiate infraction proceedings in a way to try to resolve the situation with such a member state within reasonable time. If despite such efforts, state does not fulfil requirements from the Commission, then Commission refers the case to the European Court of Justice.

Although they are not yet members of the EU, BiH, Croatia and Serbia have opted for adopting a single anti-discrimination law. In some of these countries, civil society has already launched campaigns to adopt such laws.

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3.2. Bodies for securing equality and promoting equal treatment (Equality

bodies)74

In implementation of anti-discrimination directives state is obliged not just to harmonize national legislation, but to ensure implementation of those directives in practice by establishing different bodies. States could choose adequate model, structure and method of work, but in any case it is expected to provide:

- independent and concrete legal assistance to victims of discrimination, not diminishing the possibility of NGOs and other organisations (such as trade unions) with legal interest to provide legal assistance to victims of discrimination in legal proceedings, with their consent;

- research and analyses of discrimination and discriminatory trends; - publication of independent reports and recommendations for elimination of

discrimination and/or improvement of the situation.

According to European legislation, such equality bodies play an important role in monitoring implementation of laws and other documents, and in collaboration with civil society.

Within the EU one may come across very different models and competences of those bodies. Some of the countries established separate specialised bodies for e.g. centres, agencies etc. with narrow focus on one ground of discrimination, while in some other cases those bodies deal with much brother scope of discrimination. Since in many countries Ombudsman has in place their competencies were broaden, so they additionally deal with implementation of principles from directives. All those bodies can have different competencies so there are equality bodies with quasi-judicial competences, for example:

- Sweden has a special ombudsperson for each of the grounds for discrimination (ethnic, disability, etc.);

- Ireland has a body which established the Equality Authority and the Equality Tribunal, with jurisdiction over cases of discrimination based on sex, family status, age, disability, race, sexual orientation, etc.;

- The Netherlands has an Equal Treatment Commission, with jurisdiction over cases of discrimination on the basis of sex, disability, age, chronic illness, religion or belief, etc.

More recent examples of equality bodies focus on promotion and monitoring of principles of equal treatment and discrimination on all grounds. Thus, for example:

- Belgium – legislation applying directives from 2000 expands the competences of the Centre for Equal Opportunities and Against Racism, with the aim of covering cases of discrimination on the basis of sexual orientation, disability, birth, religion or social philosophy, current health state, etc.;

- Slovenia – after adoption of Equality law it is established Govermant Council for fulfilment and advocacy for principles of equality which provide independent and non obligatory opinion on individual case of discrimination. In the same time Slovenia has an office for equal opportunities dealing exlusively with issues of gender equality.

74 Links to national bodies for promotion and protection of equal treatment: http://ec.europa.eu/employment_social/fundamental_rights/rights/neb_en.htm

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It is crucial to ensure independent status of those bodies and that is the biggest challenge for new EU member countries, as well as for countries in the region which are currently in the accession process.

Analyses of best practice cases – Swedish Ombudsmen75

- Ombudsman for children’s rights, - Ombudsman for equal opportunities, - Ombudsman for combating discrimination on the basis of sexual orientation, - Ombudsman for combating ethnic discrimination, - Parliamentary ombudsman, - Ombudsman for the rights of persons with disabilities.

Example of single ground equality body

Swedish Ombudsman for combating discrimination on the basis of sexual orientation76

The general task of the Ombudsman is to combat homophobia and discrimination on the basis of sexual orientation in all segments of Swedish society, through:

Application of the principle of non-discrimination, Obligation to apply anti-discrimination legislation in:

o employment, o higher education, o provision of public goods and services, o pre-school, primary and secondary education,

counselling and support, representing individual cases before courts, proposing anti-discrimination measures to the government, promoting equality and equal opportunities, monitoring international trends.

The nature of the Ombudsman as a quasi-judicial body

The Ombudsman, as quasi-judicial body, conduct investigations, on the basis of which it may resolve a case by reinstating an employee, removing or changing a discriminatory provision, stopping harassment, changing the content of textbooks, as well as by reaching settlements in form of financial compensation, apology, education, etc.

The Ombudsman delivers written decisions that, if not implemented by the defendant (author of discrimination), may be brought before the Court for enforcement.

75 Link to ombudsman for protection against discrimination on different groundshttp://www.manskligarattigheter.gov.se/extra/pod/?module_instance=2&action=pod_show&id=1776 www.homo.se

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II CoE – mechanisms and possibilities for strategic litigation

1. Council of Europe77

The Council of Europe is an international organization formed by 47 member states, that is to say all countries of the European continent, with the exclusion of Belarus, which has been suspended. BiH, Croatia and Serbia are member states.

Established in 1949, the Council of Europe (Fr. Conseil de l' Europe) is the first and the oldest pan-European organisation, located in the Palais de l’Europe in Strasbourg.

Its main bodies are the Committee of Ministers, its decision-making body, formed by the member states’ ministers of foreign affairs, and the Parliamentary Assembly, a body formed by representatives of the national Parliaments, which has an important role in the human rights area, such as the approval of recommendations, non binding but with a certain weight in the organization.

Key aims of the Council of Europe are advancement of parliamentary democracy, respect for human rights and establishment of the rule of law. It is therefore one of the regional key organization for the advancement of human rights.

In order to attain those aims, since its establishment the Council of Europe has adopted more than 200 international treaties on human and social rights, the media, freedom of expression, education, culture, cultural identity, cultural diversity, sports, local self-governance, health, legal, regional and state-level cooperation.

The principal document of the Council of Europe is the European Convention on Human Rights (1950.) The European Convention and its 14 protocols set the standards of protection and mechanisms of practical application of human rights across Europe. In cases when competent bodies of contracting states do not observe the rights guaranteed by the Convention, there is a possibility to seek protection before the European Court of Human Rights as the permanent protection system (Protocol 11 to the European Convention on Human Rights). Harmonisation of laws and practice is particularly important in democratisation and establishment of the rule of law in post-communist countries of Eastern and Central Europe.

1.1 The European Convention on Human Rights

The European Convention on Human Rights and Fundamental Freedoms, the European Convention (ECHR)78 is, as mentioned above, the most important regional human rights instrument in Europe. All member states of the Council of Europe are parties of the Convention, and new members are expected to sign and ratify it.

The ECHR contains in its section I a list of civil and political human rights that member states are obliged to respect. Section II establishes and determines the functioning of the European Court of Human Rights. Several additional Protocols are attached to the Convention.

77 More on the Council of Europe at http://www.coe.int/78 Integral text of the European Convention available at www.bh-hchr.org/Dokumenti/Evropska%20konvencija%20o%20ljudskim%20pravima%20i%20osnovnim%20slobodama%20bos.doc 78 or in English, including Protocol 12, at http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm;

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1.2 The principle of non Discrimination according to the ECHR

Article 14 of the ECHR reads:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The definition of discrimination contained in Article 14 of the European Convention offers a basis for prohibition of discrimination wider than the one contained in anti-discrimination directives. This Article contains a list of possible grounds for unlawful discrimination, without being limited to the grounds listed. The list includes: sex, race, colour, language, religion, political or other belief, national or social background, affiliation with a national minority, property, birth or other status.

The term “other status” expands the list of grounds for prohibition of discrimination. The European Court of Human Rights79 has considered numerous cases of discrimination, which included “other grounds”, and has included cases based on marital status,80 professional status,81 sexual orientation,82 military rank,83 illegitimacy.84

Article 14, which prohibits discrimination, has a special status in the Convention. This means that parties may invoke this Article only in relation to a violation of another Article from the Convention. Only the adoption of Protocol 12 to the Convention allowed for autonomous reference to Article 14 in cases of discrimination. However, in order to exercise rights set by Protocol 12, a state must sign and ratify the Protocol.85 Importantly enough, BiH, Croatia

and Serbia have all signed and ratified Protocol 12: this means that citizens from the three countries may enjoy a broader degree of protection from discrimination under Article 14.

Discrimination test by the European Court of Human Rights86

- In order to see whether a particular case includes discrimination, the Court of Human Rights has developed the so-called discrimination test in applications based on Article 14 of the Convention. Court considers wider grounds for discrimination than those contained in the directives. Still strict conditions must be met for a case to be considered an instance of discrimination. Below are the criteria used by the Court to determined discrimination case:

Is the discrimination charge part of a right protected by Convention?

Has a basic provision of Convention been violated?

Is there difference in treatment?

Is there an objective and reasonable justification for different treatment?

79 More on the work of the European Court of Human Rights and its case at http://www.echr.coe.int/echr; Application forms in local languages and other related details may be found at http://www.echr.coe.int/ECHR/EN/Header/Applicants/Information+for+applicants/Application+form;80 McMichael v. U.K. (1995); 81 Van der Mussele v. Belgium (1983); and Rekvenyi v. Hungary (1999);82 Salgueiro da Silva Mouta v. Portugal (1999); Frette v. France (2002); as well as Karner v. Austria (2003); 83 Engel et al. v. The Netherlands (1976);84 Marckx v. Belgium (1979); Inze v. Austria (1987); Vermeire v. Belgium (1991); and Mazurek v. France (2000); 85 The text of Protocol 12 available at http://www.humanrights.coe.int/Prot12/Protocol%2012%20and%20Exp%20Rep.htm. Thus far, Croatia and Serbia have ratified, and BiH has signed protocol 12. A list of countries which have signed and ratified the Protocol available at http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=177&CM=8&DF=19/02/2006&CL=ENG86 More in Prohibition of Discrimination Pursuant to ECHR, Article 14 – a lawyers’ manual, Interights, 2006, available at www.helsinki.org.yu/hrlawyers/files/sem3_clan14a.doc;

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Is different treatment conditioned by an attempt to achieve a legitimate aim?

Are the means used reasonably proportionate to that legitimate aim?

Does the difference in treatment exceed the state’s margin of appreciation?

Non discrimination and economic, social and cultural rights

Economic, social and cultural rights are protected in the European region by another human rights instrument, the European Social Charter was adopted in 1961 and revised in 1996 BiH and Serbia signed (but not ratified) the revised Charter, Croatia signed and ratified the 1961 Charter.The monitoring mechanism of the Charter is the European Committee of Social Rights, that monitors the implementation of the Charter and accepts collective complaints, but it has notthe functions of the Court. For this reason, although article E of the 1996 Charter establishes the principle of non discrimination, this publication will focus on the ECHR.

2. Judicial protection

Citizens of BiH, Croatia and Serbia have access to the European Court of Human Rights. It is very important for NGO’s to be adequately educated on how to use this mechanism as one of the method for human rights and anti-discrimination advocacy and, most of all, litigation. We strongly believe that it is important to choose specific case in which decision would affect human rights of brother number of citizens or could be used to change national legislation.

2.1. European Court of Human Rights87

The European Court of Human Rights – EctHR – is the judicial mechanism of the Council of Europe, and is the fundamental mechanism of supervision of observance of obligations arising from the European Convention for Protection of Human Rights and Fundamental Freedoms. Therefore, citizens of European countries that have ratified the Convention may seek protection against violations of their rights by a member state under the conditions indicated below.

Judicial protection is very important. The European Court of Human Rights not only deals with individual applications – it also interprets the Convention, and its judgements are a source of law for member countries.

The Court became a permanent human rights protection mechanism in Europe in 1998, after Protocol 11 to the European Convention came into force. Prior to that, in addition to the Court, judicial competence was exercised by the European Commission for Human Rights as well. The Protocol abolished the Commission, but it continued to operate until 1999, in order to complete the then pending cases.

The issue of judicial system reform was raised in 2000, and Protocol 14 was proposed as a mechanism to relieve the Court of its load and improve its efficiency. It provides for a transfer of competence from the chamber to individual judges, it reduces the number of chamber members, and observance of conditions for initiating international legal disputes. For the Protocol to come into force, it must be ratified by all the member states of the Council of

87 More on the Court available at http://www.echr.coe.int/echr

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Europe. However, numerous critics of Protocol 14 claim that such provisions will bear a negative impact on individual protection of human rights.

The seat of the Court is in Strasbourg, France. Its organisation, composition and competence are regulated by the European Convention on Human Rights and Rules of Procedure of the Court.

The number of judges in the Court corresponds to the number of high contracting parties of the Convention (currently 47 judges), and they are not obliged to observe any instructions of their respective states, but rather to discharge their duties independently and impartially, as professionals employed by the Court. Proceedings before the Court may be initiated by individuals, NGOs, or groups of persons, if they believe that their rights from the Convention or its protocols have been violated and if such a violation is the responsibility of a contracting state. Proceedings may also be instituted by contracting states, in relation to an alleged violation of the Convention or its protocol by another contracting state.

2.2. Initiation of proceedings88

Proceedings are initiated by filing an application, and its standard form is available at the Court’s web page.89 The Court applies special criteria on admissibility of application and this is the most important segment of the system established by the Convention. Namely, a considerable number of applications are found to be inadmissible and the Court dismisses them.90

2.3. Conditions of admissibility of an application to the Court

For an application91 to be considered, certain criteria must be met, as the Court takes them into account when deciding on admissibility, as follows:

The status of a victim – the applicant must prove that he or she was personally affected by the alleged Convention violation. However, it is important to note that the applicant loses the status of a victim if he or she has accepted a settlement before a national court in relation to a claim for compensation of damages. In some cases, even a formal apology by the state may end in a loss of the status of a victim.92 Also, there is a possibility of recognition of the status of a victim for family members, although they themselves were not victims of a direct violation of the Convention. Exhaustion of domestic legal remedies – this is one of the principal conditions for an admissibility decision (Article 35 of the Convention). Still, there is an exception to the application of this condition, in relation to Article 6 of the Convention, related to violations of the right to affair trial and the right to a trial within reasonable time. The burden of proof that all the domestic legal remedies have not been exhausted always rests on the state. In relation to this, it must be proved to the Court that those are

88 Application forms available at: http://www.echr.coe.int/ECHR/EN/Header/Applicants/Information+for+applicants/Application+form89 A letter may be sent to the court containing data on the applicants, proceedings before national institutions, and indication of articles of the Convention allegedly violated. It is important to include copies of all the relevant documents. Omission of these elements and failure to observe the six month rule may lead to a dismissal of an application. 90 During 2005, out of 28,581 admissibility decisions, only 1,729 were admitted, whereas 26,852 were declared inadmissible. Evropski sud za ljudska prava [ECtHR], by Milan Paunovi and Slavoljub Cari .91 Applications or letters to the Court may be sent by post or otherwise, but a signed original must be submitted to the Court within 5 days of the date when a copy was sent. The relevant date for calculating the time is the date of submission of the application. 92 Faulkner v. U.K., where the UK Government formally apologised for the violation and committed itself to take steps to prevent such violations in future.

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accessible, efficient and adequate legal remedies, both in theory and in practice. Effectiveness of domestic legal remedies is assessed in particular in cases of lengthy judicial proceedings before national bodies. The six month deadline - there are several reasons for the obligation to file an application no later than six months following the last valid national ruling. It is thus believed that this is adequate time for any potential applicant to decide on whether to apply; it is easier to collect all the relevant documents if they are related to recent past; it contributes to legal certainty, as it prevents the examination of rulings made in remote past and can thus deal with certain acquired rights, etc. However, this time restriction does not apply to cases of violations of lasting character, i.e. if they relate to time spent in detention, or refusal to pay compensation for expropriation or nationalisation, which are, in essence, instant acts of state bodies. There is another instance where the six month rule does not apply – if it relates to a case of an ineffective legal remedy, i.e. the issue whether such a ruling can be considered in terms of a matter already adjudicated (res iudicata).An anonymous application - applications not containing data on the applicant are not admissible. There are certain situations where applicants may request the Court not to reveal their identity, but such a requests must be substantiated by reasons and should the Court accept them, the case will be handled with only the initials of the applicant, or a letter, such as X, Y etc. Identical applications – are not admissible if they are identical to another application already considered by the Court and filed by the same person. However, the applicant is different in the same matter or if the application is based on facts different from those cited in an earlier application, the application will not be considered identical. Application filed with another international body – the Court does not consider applications already submitted for consideration by another international instance (such as, for instance the U.N. Human Rights Committee that supervises the implementation of the International Covenant on Civil and Political Rights), unless it contains new and relevant facts. Incompatibility of the application with Convention provisions – the Court will not admit an application which is incompatible with the Convention in terms of restrictions in state competences (such as, for example, the issue of territorial jurisdiction of the state); or due to a restriction in issues regulated by the Convention (e.g. if it relates to matters not regulated by the Convention); due to a temporal restriction of the state’s obligations in relation to the Convention (e.g. if the state had not ratified the Convention at the time when the application was filed), and because of the issue of authorised applicant or respondent party (e.g. an application may only be filed against a state, and not against an organisation or association within the state).Manifestly unfounded application – if the Court finds that the application does not amount to a violation of the Convention.Abuse of the right to file an application – if it is an application aimed at spreading propaganda rather than protecting human rights. Thus, for example, if the applicant uses derogatory or offensive language in order to insult or damage the state or its reputation, or if he or she conscientiously conceals relevant evidence and facts.

After the Court has decided on admissibility, it proceeds to examine the case. In that sense, the Court may instruct the parties to forward written observations and opinions, it may hear witnesses on site, and when necessary it may hold public hearings.

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2.4. Termination of proceedings before the Court

Proceedings before the Court may end in several ways: with a judgement and a settlement, when the application withdraws the application, when the applicant fails to be an active party to the proceedings (fails to respond to summons, etc.), and when it proves for whatever reason that further proceedings are not justified.

Legal remedies

A judgement becomes valid only after:

- the parties state that they do not want the case to be presented to the Grand Chamber,

- if none of the parties request a hearing before the Grand Chamber within three months following the judgement, and

- if the collegium refuses a request to address the Grand Chamber.

Grand Chamber is consisted of five judges with different competencies. Among other, within a period of 3 months from the date of the judgement of the Chamber any parties to the case may in exceptional cases request that the case be referred to the Grand Chamber. Grand Chamber will accept the request if the case raises a serious question affecting implementation or application of the Human Rights Convention and its Protocols or serious issues of general importance. In this case no judge from the Chamber which rendered the judgement will sit in the Grand Chamber with the exception of the president of the Chamber and the judge who sat in respect of the state parties concerned.

A judgement of the Grand Chamber is valid immediately.

2.5. Enforcement of judgements of the Court

Article 46, paragraph 1 of the Convention provides that high contracting parties are obliged to observe the Court’s judgements irrespective of their declaratory nature. States themselves are aware of their obligations in relation to the Convention and in most cases they undertake all the necessary measures to remove the causes which may lead to further violations of the Convention. The Committee of Ministers plays an important role in supervising enforcement of rulings of the Court and it does so in different ways. It can thus adopt resolutions, declarations or recommendations for member states, with the aim of improving proceedings before the Court, or it can request a member state to report on all the measures taken in order to implement a judgement related to it. The Committee of Ministers holds six meetings per year, in order to discuss enforcement of the Court’s rulings. In some cases, if the state continues to refuse to observe a ruling by the Court, a threat of suspension of membership in the Council of Europe may be used, and other member states may be called to take measures against such states.

The Parliamentary Assembly of the Council of Europe also plays an important role in supervision of enforcement of the Court’s rulings. Thus, for example, the Committee for Legal Issues and Human Rights may request the state’s delegates in the Parliamentary Assembly to provide an explanation. The Human Rights Commissioner may hold separate meetings with representatives of member states in order to discuss problems related to enforcement and observance of the Court’s rulings, and in some cases the General Secretary of the Council of Europe may take an interest in enforcement of judgements of the Court.

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ANNEX III

List of the most important courts cases on discrimination

1. European cort of justice95

:

Case C-203/03 – Commission of the E.C. v. Austria Case C-333/97 - Susanne Lewen v Lothar Denda Case C-273/97 - Angela Maria Sirdar v The Army Board and Secretary of State for Defence Case C-167/97 - Regina v Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez Case 12/81 - Eileen Garland v British Rail Engineering Limited Case 58/81 - Commission of the European Communities v Grand Duchy of Luxembourg Case 14/83 - Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen Case 318/86 - Commission of the European Communities v French Republic Case C-177/88 - Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus Case C-271/91 - M. Helen Marshall v Southampton and South-West Hampshire Area Health AuthorityCase C-450/93 - Eckhard Kalanke v Freie Hansestadt Bremen Case C-409/95 - Hellmut Marschall v Land Nordrhein-Westfalen Case C-158/97 - Georg Badeck and Others, interveners: Hessische Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes Hessen Case C-407/98 - Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist

Postitive action cases

Case C-450/93 - Eckhard Kalanke v Freie Hansestadt Bremen Case C-409/95 - Hellmut Marschall v Land Nordrhein-Westfalen Case C-158/97 - Georg Badeck and Others, interveners: Hessische Ministerpräsident and Landesanwalt beim Staatsgerichtshof des Landes Hessen Case C-407/98 - Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist

2. European court for human rights96

The most important cases of Court of human rights according to Article 14 of European

Convention for Human Rights (prohibition of discrimination):

Race

Moldovan and Others v. Romania (no. 2) (application nos. 41138/98 and 64320/01). Nachova and Others v. Bulgaria (application no. 43577/98)

Sex (Gender)

Abdulaziz, Cabales, and Balkandali v. United Kingdom (Application no.s 9214/80; 9473/81; 9474/81)Burghartz v. Switzerland (Application no. 016213/90)

95 More about the Court itself and court cases you can find at http://curia.europa.eu/;96 http://www.echr.coe.int/echr/ More about this court yu can find at HUDOC – web data base of the Human Rights Court cases: http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/

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Karlheinz Schmidt v. Germany (Application no. 13580/88) Petrovic v. Austria (Application no.20458/92)

Sexual orientation97

Salgueiro da Silva Mouta v. Portugal (Application no. 33290/96) E.B. v. France Karner v. Austria

97 According to European Court for Human Rights interpretation of discrimination covers discrimination on bases of sexual orientation;

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Monitoring the Adoption and

Implementation of Laws

Anti-Discrimination98

98 For more comprehensive information on monitoring, please refer to Measuring Discrimination: Data Collection and EU Equality Law,Timo Makkonen, European Network of Legal Experts in the non-discrimination field, European Commission (November 2007).

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Why Monitor?

Under European law the burden of monitoring laws and policies for discriminatory impact is on the government. European law also requires that the countries seeking accession adopt appropriate legislation to reflect the Directives and provides support for this process through the European Commission. But even with these government obligations, there is still a necessity for all stakeholders to play an important monitoring function, especially for non-governmental organizations.

NGOs can be particularly effective in monitoring both the legislative process and the implementation of laws in countries hoping to seek accession where the government may not yet have a legal obligation under European law.99 Even when a country is not yet at the stage of becoming a member of the European Community, monitoring the adoption or implementation of laws can be an important way of measuring the discriminatory effects a law or policy has in practice, and for providing clear evidence to influence policy makers and create awareness to society as a whole.

What Can Monitoring Do?

Effective monitoring can have an array of impacts in the context of Anti-Discrimination Law:

It can guide and promote effective policies, legislation, and effective resolutions to various forms of discrimination. It can help promote transparency and accountability of the legislative body to their constituents. It can highlight various institutional and societal patterns, employment practices, and state trends. It can help raise awareness, both nationally and internationally, about the preservation or violation of various human rights, educate populations in the realization of these rights, guide NGOs to effectively network and target their efforts, and promote social dialogue.It can assist in providing evidence in proving discrimination in various claims and/or cases, as data collection is an integral part of successful monitoring. It can help engage everyday citizens in the legislative process. It can reveal if laws, or sections of laws, have or have not been implemented, as well as, their direct and indirect impact on protected populations.It can highlight the importance of regional and international cooperation in monitoring anti-discrimination legislation and implementation especially in sharing best and failed practices. It can promote the elaboration of positive action strategies.

99 Note that while European law may not yet apply, international human rights law, such as the UN Convention on the Rights of Persons with Disabilities, place an obligation on signatories to collect “appropriate information, including statistical and research data” to give effect to the treaty or, alternatively, require a state identify areas of weakness and monitor progress which would require data (International Convention on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination) . It can be useful to determine if your country is a signatory to a treaty requiring such collection and whether data exists. Furthermore, states reporting under their treaty obligations are often encouraged by the treaty monitoring body to include relevant data which requires monitoring the implementation of law for disparate impact.

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What is Monitoring the Legislation Adoption to Ensure Non-Discrimination or

Monitoring the Impact of a Policy or Law?

Monitoring is a process to assess whether proposed legislation is drafted in accordance with the principles of the Anti-Discrimination Directives and once a law or policy is adopted, to assess whether these policies or laws in practice discriminate against specific groups. Monitoring can also help an NGO find out why and how discrimination is taking place. In addition, in the case of the Directives, civil society can play a crucial role in pushing for the best possible interpretation of the various Directive’s provisions.

What Should You Do During the Legislative Process?

If your organization has the capacity to monitor the legislative process and particularly if your country is in the initial phases of the accession process, you can play an important role in ensuring that new laws or policies ensure non-discrimination by comparing the protected categories under the Directives with those in any proposed legislation. Typically when monitoring the legislative process, you are looking for examples of direct discrimination, where the language of the law fails to protect specific protected categories or provides for illegal protection of unprotected categories.

Where adopted legislation is not in compliance with the Directives, you can provide information on the faulty legislation to the European Commission charged with assisting countries to implement the Directives during the accession process. Once the accession process is fully underway, the European Commission will be charged with oversight of any legislative initiatives needed to bring a country into compliance with the Directives and other European legal obligations, and NGO participation in the process is typically minimal.

Whether your country is in the accession process or not, you can review draft legislation, develop and present persuasive arguments and effectively communicate with policy makers, and mobilize the public and/or interest groups about pending legislations and the need to include protections for the protected categories.100 Even governments which are not currently undergoing accession may be interested in the resources you can provide on the Directives and the future obligations that the country would assume if they were to apply for membership in the European Union. Additionally, your country’s constitution may provide for “equality before the law” or other anti-discrimination language that can be used to support advocacy for the adoption of more protective laws.

To monitor the legislative adoption process, you can take a number of different approaches, which approach would be most appropriate depends on the legislative process in your country. The most effective time to influence the legislative process is when a bill is in the initial stages of development. This can require that you have information about how bills progress and can access those in charge of the early steps in the process, often committee or sub-committee members. Being familiar with and friendly with representatives can be an important way to access information about bills that are likely to be considered in the near future. The executive branch of your government may also be able to suggest draft legislation and it can be useful to be in touch with the relevant departments within the government (the

100 Note that while the Anti-Discrimination Directives outline 6 protected categories, several states in the European Union have broadenedthe protected categories to include other categories of individuals. NGOs may want to consider encouraging their governments to take similarly liberal approaches to anti-discrimination initiatives.

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department of labor, the office of social security, etc.) if you anticipate that they are working on new proposals.

One approach is to study the upcoming legislative calendar and identify any pending laws that may be of interest to you and your constituency. Some governments share draft legislation, but often it can be difficult to acquire a copy of draft legislation. Where draft legislation is not public, it can be useful to target specific members of parliament who may be friendly to your cause and willing to share legislation drafts.

You may also want to track the voting record of lawmakers on specific proposed bills and publicize the results. Such monitoring can expose contradictions between election platforms, if related to anti-discrimination initiatives, and voting records. This approach also raises the level of accountability and can be part of a larger strategy to promote more responsive representatives.

Another approach involves targeting specific parliamentarians by involving their constituency in calling for the proposed legislation to provide anti-discrimination protection. This demand-based approach can help ensure access to information about the stage of the legislative drafting process by pressuring a response from a particular lawmaker. Here, networking among groups of similarly minded constituents can be helpful.

Access to information Act could be very useful in gathering draft laws and other information regarding process of drafting and adoption of those laws since BiH, Croatia and Serbia adopted this Act.

How Should You Monitor Implementation of Laws for Discriminatory Impact?

Often as a non-governmental organization working with communities that may face discrimination; you may have some information about laws that may violate anti-discrimination efforts indirectly. Indirect discrimination means that the law on its face does not appear to differential or to treat individuals differently based on their status but, in fact, the application of the law results in disparate treatment based on a protected category. Often your suspicion of a law’s discriminatory nature is not yet supported with documented evidence or data of the negative impact of a law or policy. For each law or policy that you believe may have a negative or discriminatory impact on a specific protected category, you should:

Monitor the effects of the law or policy on different protected categories Determine if there are any differences in the impact of the law or policy on different categories Assess whether any difference in impact has an adverse effect on the protected category

These steps will help you develop the support documentation for any advocacy you want to do on amending or challenging the law or policy based on its discriminatory impact.

Chief Researcher, Lillian Artz, at the Institute of Criminology at the University of Cape Town developed this four tier analytical tool for monitoring legislation to be developed with coinciding indicators –

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The substantive analysis:

What does the law actually say? Is the operation of the law hampered because it is poorly constructed?

The contextual analysis:

What was the intention of the legislation, or specific provisions within the legislation? How is it supposed to work?

The conceptual analysis:

What does the legislation imply or say about the phenomenon in question? (What the law does about a phenomenon and what it says about a phenomenon may affect the beliefs and attitudes of those required to enforce it).

The operational analysis:

What happens in the day-to-day practice of implementing the law? What are the experiences of criminal justice personnel and individuals attempting to utilize the law? How are criminal justice personnel interpreting the law?

Monitoring and the Government, Friend or Foe?101

Monitoring legislation and implementation and the subsequent research involved may entail working with government bodies, officials, and documentation. The decision to include a ‘partnership’ with the government in your methodology will be depend on specific country contexts, access to government structures and information, political will, and whether entering into an understanding with the government benefits your research objectives and goals.

Pros:Access to multiple sources of information, such as records from the Ministry of Health,

Housing, etc., as well as access to government officials may strengthen your data collection, and therefore overall findings.

Better access to government records may more effectively reveal details about the strengths and weaknesses of the implementation of various laws (ie. budget restraints or insufficient budgeting, inadequate action plans, officials that require training, need for stronger protection measures, etc.)

Working with and/or having an understanding with government bodies may ensure that your findings and recommendations are reviewed, and may give you stronger footing to more effectively engage them in dialogue and reform.

Cons:Conflicting objectives – NGOs may be monitoring a law to discover the issues and inadequacies, where as a government may only want to highlight it’s success.Governments may be selective in what information they provide for what purpose, especially if it could be controversial. Governments may try to control the process, dictating terms of authorship, ownership, content, conclusions, and distribution.

There are many other factors to consider, however, it can be a good idea to keep communications channels open with the government, inform them of the research, get permission to access government facilities, and if a more formal relationship is pursued to

101 ‘Monitoring and the Government’ section: For more information on monitoring for service delivery organizations and research methods, please see A Toolkit For Monitoring Legislation, Lillian Artz, Kelly Moult, Institute of Criminology, University of Cape Town, South Africa (2003).

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clearly set out an agreement or terms of reference from the very beginning. Such actions can assist the retrieval of certain information and build relations between governments and civil society, however, local contexts and local organizational missions will dictate the feasibility of such a partnership.

How Do You Monitor Impact & Implementation?

The methods used to monitor will vary by individual organization’s expertise and resources. It is important to prioritize which legislation to monitor based the importance of the issue, the number of individuals likely to be impacted and the likely severity of the impact.

You can use a wide range of methods to collect information. The quality of information that you gather increases with the number and range of methods that you use to collect data. Some possible monitoring methods include:

Reviewing records (where personal data is collected) such as vital statistics, pension claims, labor disputes, enrollment reports from an education department, employment statistics, etc. Data on Complaints Random or targeted in-depth interviews TestingPublic consultationsFocus groups Trial observation Satisfaction and perception surveys for state-provided services and other types of surveys

Whichever method you select, you should try to reach individuals who have first-hand or verifiable information. For a compelling case, it is useful to have both quantitative and qualitative data and that it be reliable and relevant. Working with social science professionals prior to conducting your monitoring can help assure that the information that you collect will actually identify whether or not a policy or law is discriminatory.

Quantitative data is data that can be identified or measured numerically, (ie. statistical data often answering the question “what, where, and when,” or how many, how often, what percentage, etc.).Qualitative data is information that looks to answer the “why and how” of the study subject, it frequently looks into the reasons behind human behavior and looks to understand and explain social phenomena.

It is also important to consider which methods would likely be effective in reaching your targeted population, including women, young people, new immigrants, individuals without a permanent domicile, the disabled, and individuals in rural areas. Consulting with individuals in the protected categories can be key to the success of your data collection. While leaders within the categories are natural sources of information, you should not limit your outreach to those individuals. Often including individuals from the communities as advisors in designing or participants in collecting the data can promote more complete information.

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Depending on the methods that you choose, to can compile teams to carry out your methodology and data collection, members of your organization, members of an NGO consortium, academics, a data collection agency, volunteers, etc. It is important to ensure your teams are well versed on the subject matter, the integrity of the study, the sensitivity and rights of the participants, and the importance of their impartiality in collecting information.

Finally, make sure that any data collection methodology accounts for potential barriers to accessing individuals, including language, education level, physical limitations, and other possibly impediments to effective participation.

Reviewing Records Governments may collect personal data information on services provided. Where such records exist, you may be able to access this data and analyze it based on different protected categories. If the government does not collect information on personal data (such as population registry, medical registry, immigrant registry, and/or combination of several such sources of data) you may want to look for research studies or surveys conducted by the government or other interested individuals or advocate for requiring data collection as a positive duty of the government. Often there are gaps in the information and you will need to work to fill those gaps. One potential source of information is other NGOs which work with the protected population or that supplement government services. For instance, if you believe that the government’s rules on domestic violence is discriminatory you could contact groups who provide shelter to the victims of domestic violence to see who seeks their services and then compare that information to information on the general population.

Data on Complaints One area of law that frequently has a discriminatory impact on protected groups is criminal law. Examining data from various sources prison sentences, prosecution files, court cases, police crime reports, and other institutions that handle complaints can reveal a variety of issues, such as: police resource allocation, police bias, discriminatory sentencing policies, lack of access to legal representation, unfair sentencing practices, or other barriers. Such records may also provide additional demographical data which may offer information to related forms of direct and indirect discrimination. By visiting prisons and recording information on pre-trial detainees and inmates, you can identify the reason for disproportionate incarceration of protected groups. Prison visits require negotiating with prison or government officials about access to prisoners. Care should be taken to ensure the safety of those interviewed and ideally, interviews should be conducted with a relative degree of privacy. If you are denied access to prisoners, you may be able to work with legal aid lawyers or other representatives who may have a legal right of access to their prisoner-clients

Random or Targeted In-depth Interviews If you have identified a particular law or policy that you believe is discriminatory often the easiest way to get detailed information is directly from those most familiar with the application or those likely to be impacted by the law or policy. In-depth interviews are often structured around a series of open-ended questions about the law or policy and its impact on the individual or those individuals serviced. While there are prepared questions, it is often useful to allow flexibility in following up on responses to ensure unanticipated information is fully understood. These interviews

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can provide qualitative information about discriminatory impacts, can help identify where more quantifiable information can be found and, perhaps most importantly, can suggest possible amendments to the policy or practice which can correct the disparate impact.

TestingTesting as a form of monitoring includes setting up a situation to test a theory of discrimination. It can be useful in identifying evidence of indirect discrimination which may be defended on non-discriminatory grounds when directly confronted. For example, if you believe that an employer is discriminating against certain ethnic groups, you can submit identical resumes with different names- one clearly from a particular ethnic group, and see if either resume receives a request for an interview. Often more than one test will be needed to show a pattern or trend of discrimination rather than a random event. For example, if a flat is for let and you suspect that the landlord is discriminating against disabled persons, you can submit applications from those who are disabled and non-disabled with otherwise similar situations (economic, etc) to show a pattern of discrimination against the chosen group. Individuals used in testing should record information about their experience which will be analyzed by others for evidence of discrimination.

Public ConsultationsPublic consultations are open forum where members of a particular community can share their opinions or concerns about the law or policy you are researching. These meetings can be kept informal and limited to individuals from within one category to promote open dialogue. Individuals who frequently face discrimination may be more comfortable speaking about such practices in a familiar venue. Seeking advice from a member of the group can help avoid inappropriate situations.

Focus Groups Focus groups are a small group selected by you from a wider population and sampled, by open discussion, for its members' opinions about or emotional response to your targeted law or policy. Focus groups also allow interactive dialogue among participants which can reveal patterns or trends of discriminatory practices and also develop a sense of community. Public consultations and focus groups provide a wider

“In the U.S., testing has been shown to be one of the most effective tools for proving discrimination in such cases. For instance, in 1989 the Washington Lawyer’s Committee working with the local community and Howard University experts adapted testing to prove discrimination in the provision of taxicab services in the District of Colombia. This work involved substantial research using paired teams to test for discrimination in (1) the refusal of service because of a passenger’s race and (2) the refusal to transport passengers to predominantly black neighborhoods. Over the course of two and a half months, the team trained and carefully matched teams of black and white testers, who ultimately conducted 292 tests. The test results showed that taxis failed to stop for black testers in 20% of the tests, while cabs passed white testers during only 3% of the tests. Drivers also commonly refused to bring black and white testers to predominantly black neighborhoods in the District of Colombia.”

Testing to Prove Racial Discrimination: methodology and application in Hungary, at:

http://www.errc.org/cikk.php?cikk=1016

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range of information and encourage community discussion, but usually with fewer details than informational interviews.

Trail Observation Trail observation can help to identify discrimination in application of a law. Trial observers can collect personal data on defendants or claimants, record judicial or prosecutorial action and note judgments or sentences. For example, members of national minorities may receive harsher sentences for minor crimes than others who commit similar crimes. Trials should make accommodation for individuals to ensure equal access to justice. For example, if interpretation is not provided, individuals may not understand the proceedings sufficiently to protect their interests. After a sufficient amount of data has been collected by the trial observers, you can analyze it to see if it demonstrates a discriminatory impact. Trail observation can provide both quantitative and qualitative data.

SurveysSurveys or questionnaires are an efficient way to collect information- both qualitative and quantitative- from a large group of individuals. Surveys can be conducted in-person, by e-mail, mail, through a web site, or by-telephone and are relatively inexpensive. With the exception of more resource intensive in-person surveys, non-response can be a problem. Surveys can be very useful if they target individuals at the point of service. For instance, if you believe that health policies are discriminatory, you could work with health care providers to provide surveys to their patients as they check out. Surveys can address the perception of discrimination, opinions about the targeted categories, knowledge of existing legislation or policy, awareness of any prohibitions against discrimination, access to justice, and active or passive discriminatory practices. Surveys can be problematic at exposing acts of discrimination since most respondents are aware of and will supply the socially-desirable response; this is particularly true if the survey is administered in-person. It is important to formulate your questions well and in a comprehensive manner to assist with the issue of non-self identification of certain forms of discrimination and victimization.

Structured questions can take a variety of forms:102

Single Response items for example: What year were you born? What is your job title?

Categorical Response items for example: Question: How old are you? Answer: 1. less than 20

2. 21 to 30 3. 31 to 40 4. 41 to 50

Multiple Response Items which do not require the selection of only one response for example:

Question: Which of the following activities do you enjoy? (Circle all that apply) Answer: 1. Reading

2. Going to restaurants 3. Painting

102 A Toolkit For Monitoring Legislation, Lillian Artz, Kelly Moult, Institute of Criminology, University of Cape Town, South Africa (2003).

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4. Movies 5. Sport

Rating Scales where respondents are asked to rate their response on a scale. An example would be:

Question: How satisfied the health care you received in your hospital? 1 2 3 4 5

Completely Dissatisfied __________________________________Completely Satisfied Likert-type Items where respondents are asked to rate their response to a statement as follows:

Statement: I think the death penalty should be reinstated.

Answer: strongly disagree

moderately disagree

slightly disagree

neutral, no opinion or undecided

slightly agree

moderately agree

strongly agree

Example of media survey you can find in Annex with this part of Guide.

It may also be useful to explore how NGOs or government bodies in other countries have analyzed similar policies or laws. Wherever possible, you should use a combination of research designs and methods and each method should complement the other. For example, if you decide to conduct a focus group and do in-depth interviews, the issues to be explored in each method should mirror each other and the answers should be compared. Things to keep in mind: each method should support your research objectives, what information would be most informative to the issue you are addressing, available resources, type of information analysis (narrative, statistics, etc.), possible research limitations (time, location, budget, etc.), and ethical, private, and protection considerations.

What are Some Important Principles for Monitoring Protected Categories?

1. Confidentiality Confidentiality is essential as well as the right to privacy. Individuals must know that the information which they provide will not be attributed directly to them without their prior consent and approval. In some cases, this may in integral to protecting their safety and security, and well as the accuracy of their answers, therefore anonymous data collection may best solve this issue.

2. Self-classification Identification with a protected category must be based on an individual’s self selection. Human rights law supports the principle that it is for the individual concerned to decide in which group he or she belongs. This may, however, effect your data collection.

3. Consultation

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Consultation with leaders of the protected category is important for several reasons already mentioned. Lack of consultation can create suspicion among the members of the protected category which can taint data collection and undermine efforts to encourage social inclusion.

4. AccuracyAccuracy in collecting data and presenting evidence is crucial to your credibility. Efforts should be made to ensure impartiality in your data collection and to create checks to ensure that critical findings are based on reliable and verifiable evidence.

5. Accounting for Multiple Forms of Discrimination When monitoring for discrimination, be sure to disaggregate data whenever possible to reveal whether sub-groups are facing multiple forms of discrimination.

How Do You Identify Discrimination?

Monitoring is more than just collecting information. You must analyze the information and determine if it demonstrates direct or indirect discrimination. When examining your data, it may help to consider these questions:

Does the qualitative data show differences between protected categories and non-protected categories? Does the quantitative data show differences between protected categories and non-protected categories? Is the discrimination direct or indirect? If the law or policy creates indirect discrimination, is it justifiable?

Most monitoring on discrimination identifies whether there are actual or potential inequalities in outcomes based on the implementation of a specific law or policy. Using the data you have collected, you can begin to examine whether a law or policy affects different protected groups differently and whether those differences, if any, create an adverse impact or unlawful discrimination.

A quick guide to checking bias is if any population differs by 80% or the 4/5 rule. For example, if women are on leading positions in companies in just 10% and men in 90% in the same time, it is obvious that antidiscrimination laws or policies are not implemented. More information would be needed to determine if that adverse impact was related to direct or indirect discrimination or not discriminatory at all. Individuals may also face double discrimination and it is useful to analyze your data collection on more than one factor. For example, Roma children may be 20% less likely to finish high school but if you disaggregate the data, Roma girls are 80% less likely to finish high school.

And does that difference mean that there is discrimination? Just because there are differences in outcomes or impact between protected categories is not proof of discrimination. If differences exist, you must investigate why those differences occur.

Socio-economic data, broken down by the equality grounds, is needed to document the disadvantages that the states are, under certain conditions, required to remedy by means of special measures.

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How Do You Present Your Findings?

When analyzing your data you are examining and summarizing your findings with the goal to extract pertinent information to develop conclusions and recommendations. In essence, your goals are to: a) make sense out of the data which may include codifying, aggregating, and/or disaggregating data (combining or diving information) the data to further clarify your findings; b) examining patterns and/or relationships across your data; c) presenting your findings and discoveries about the particular issue being addressed.

When presenting a finding of discrimination law or policy whether direct or indirect, you should ensure that your supporting data is reliable and relevant. It is often helpful to explain your monitoring methodology - without identifying any confidential sources. Your document should summarize the results of your findings, highlight key findings, explain your analysis and provide compelling data which clearly demonstrates discrimination. Remember your audience when developing your findings. This is the evidence that can be used to justify or demand policy change, amendment to existing legislation, call for new legislation to fill a gap, or mobilize a population. Whenever possible, include clear recommendations for action. This is the foundation for any advocacy you will conduct.

What Are Some of the Challenges to Effective Monitoring?

1 Lack of resources Effective and comprehensive monitoring can require significant financial and human resources.

2 Difficulty in monitoring all levels of discrimination Discrimination can take place at the individual level or the structural level, directly or indirectly, at the policy level or through implementation. It is rarely possible to fully explore all elements of discrimination.

3 Identifying the causes of discrimination Related to the difficulty in monitoring all levels of discrimination is the complexity of causes. The interaction and relatedness of various causes may make it difficult to demonstrate what actually causes the discrimination.

4 Lack of model monitoring methods The field of monitoring for discrimination has grown rapidly since the European Community adopted the Anti-Discrimination Directives but the field is still nascent and finding appropriate monitoring tools can be difficult. NGOs interested in monitoring must take on a greater responsibility for design and implementation of their monitoring methodology.

5 Lack of reliable data Often reliable data or official data does not exist. NGOs with limited data collection experience should seek out the assistance of experts in the field of data collection to help make sure that any information collected is as reliable as possible.

6 Protecting sensitive data

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Collecting personal data can raise concern that the information will be used inappropriately. NGOs, in addition to maintaining confidentiality, should proactively implement safeguards to protect the data which they collect.

ANNEX103

1

DRAFT SYNTHESIS QUESTIONNAIRE104

On Line/More Color in the Media (Netherlands)

SAMPLE TOOL FOR THE EUROPEAN DAY OF MEDIA MONITORING PROJECT

PLEASE SELECT AND ADAPT QUESTIONS ACCORDING TO NATIONAL CONTEXT

Use of the questionnaire

The questionnaire is devised to code individual newspaper articles or news broadcast items with. Those planning to undertake evaluations of broadcasts as a whole or sets of articles, in group discussion for example, are referred to the Minderhedenforum ‘Checklist’ as a useful example to follow. Both this questionnaire, the Checklist and other sample methodologies will be available at http://www.multicultural.net/edmm/index.htm.

When the questionnaire mentions “minority groups”, “ethnic minorities”, etc., please understand this to mean both migrants, second- and third generation-immigrants, refugees and asylum-seekers, Roma and (other) people of color.

Note also that questions 7 - 17 only apply to items that include a specific focus on minority groups or the multicultural society.

Name of coder:

Ethnic/cultural self-identification of coder:

ITEM CHARACTERISTICS

Name of newspaper resp. TV station and program: Date of publication resp. transmission: Page number resp. place in broadcast (first, second, etc item): Headline of article / what is the item about:

1. Is the subject matter: a) general, b) general but with a reference to how it affects or is experienced by minorities c) specifically about ethnic/cultural minorities or the multicultural society?

2. Is the journalist, reporter or anchorperson of minority background?

103 Loosely based on materials devised by Mira Media, Minderhedenforum and J. ter Wal 104 About this questionnaire - This draft questionnaire has been developed, upon request, as a model that participant organisations can use to base their own, national survey forms on, selecting and adapting questions according to national context. It is a tool participants are provided with to use and follow-up on according to their own respective needs. The questionnaire combines and restructures some of the questions that are included in the questionnaire used in the 2003 Mira Media Viewers Panel (NL), the checklist drafted by the Minderhedenforum (BE) and the brief press coding sheet from the coding database that was developed for the RAXEN network to use in the EDMM ‘Week of Monitoring’.

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REPRESENTATION OF MINORITY PEOPLE IN THE NEWS

3. When the subject matter of reporting is general, are any persons from minority groups mentioned, shown or quoted, either as individuals or as group?

4. When in the item talk is specifically of minorities, or when the item’s main focus is on minorities and/or the multicultural society, are any persons from minority groups mentioned, shown or quoted, either as individuals or as group? How many of each? 4.b. How many persons from the majority group are quoted about the subject?

5. Answer the following for each of the (main) persons or groups of people of minority background that are featured in the item:

- (Approximate) ethnic identity: - (TV): Role in item (expert in studio, interview, street interview, shown in footage,

etc):- Is the person mentioned by name or does he remain anonymous? - Labeling/identification of the person or group. By ethnic or religious identity, or

legal status (“refugee”, “illegal immigrant”); by profession or organizational affiliation; by local residence; and/or by the role they play in the story (demonstrator, criminal, victim, consumer, etc)?

- Is the person/group quoted or not, and if so, directly or indirectly? - Does the person represent an organization or institution, is he presented as

speaking for a community or does he speak only for himself? - Is the person quoted or introduced in a way that underlines his authority or

impartiality, or in a way that questions his credibility, or is he presented neutrally?

6. How do the answers to the above questions compare to how persons or groups from the majority ethnic group are featured in the item? (To double-check your own impression on this, you can answer the questions for each of them, too.)

PORTRAYAL OF MINORITY / MULTICULTURAL ISSUES

These questions are specifically for news items that focus (or include a focus) on

minority groups or the multicultural society

7. In what context does the minority group, or the multicultural society as a whole, come up? (I.e., developments abroad; multicultural events or “multifolklore”; sports and culture; social or ethnic tensions; social problems, poverty, unemployment; integration, education, Islam; discrimination and racism; crime or national security; refugees and asylum-seekers; human interest stories; etc.)

8. What / whose perspective on the subject does the item cover? That of (abstract) national trends and figures, of government, politicians or policies, of the minority person / community in question, or of the surrounding majority persons / community? (Several answers might apply. If so – which are given primary emphasis? How?)

9. Is the subject of the item presented as something that constituted or illustrated:

• a problem or a conflict? Is any (majority or minority) person or group presented as especially responsible for the problem or conflict?

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• a danger or a threat? Is any (majority or minority) person or group presented as the cause of this threat? • something hopeful, endearing or symbolic of possible solutions? Is any (majority or minority) person or group presented as particularly worthy or sympathetic? • a scandal, abuse or victimization? Is any (majority or minority) person or group presented as the perpetrator or the victim of it? (explain why you think so with illustrations from the item’s selection, phrasing and setting)

10. If the subject of the item is presented as a problem or conflict, a danger of threat, is it attributed to (several answers might apply): • acts of (persons from) minority groups • something typical of the respective foreign culture • the presence of the minority groups per se / the difficulty of different cultural groups living together• acts of (persons from) the majority group towards minorities • general current social problems

10.a. If acts of individual persons are specified, are they shown as something “bad individuals” did or something that expresses problems of the group as a whole?

11. Are (persons from) different ethno-cultural groups or communities opposed or contrasted with each other in the item?

12. Are (persons from) different ethno-cultural groups or communities shown to be in agreement or face the same problems in the item?

13. Does the reporter or any of those quoted in the item make a comparison with other news stories or cases? If so, does he draw a parallel between the current story and another story or case that involved the same group (e.g., Congolese, refugees, Muslims), or a similar one involving a different group (for example the national majority group)?

14. Are stereotypes about a certain ethnic group (whether minority or majority) presented in this item? If so, which, and how?

14.a. How are these stereotypes reacted to in the item (refuted, contradicted, clarified, accepted)?

15. What is the terminology used in the item to describe the (persons from) minority groups? Would you consider this choice neutral, negative, positive or contextual?

16. Does anything strike you about the setting of the item – in terms of where it was shot, what background images were used, what music was used?

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Advocacy – tips and advices

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WHAT IS ADVOCACY?

A process in which „ordinary“ citizens take part in decision-making processes on matters that affect their lives; A civil initiative aimed at:

o converting the interests, needs and desires into a defined policy, practice or law;

o calling the authorities to account for their actions or failures; o amplifying the voice of community and enabling it an access to decision-

making process; process aimed at achieving specific goals, usually within a certain period of time, and using the knowledge and skills to make social changes;

WHY ADVOCATE?

Through advocacy one can:

make influence on strategic decisions and policies of not only the state/local authorities but also of international bodies; defend and achieve the interests of respective community and ensure that these interests are taken into consideration in decision-, law- and policy-making processes or in practice; launch a public debate on a certain issue or problem; work on improvement of the existing laws or harmonization of local laws, policies and practices with international or regional standards (UN, EU, etc.);

IMPORTANT: Advocacy makes effect, whether you win or lose. Wherever a change is needed, the advocacy plays its roles.

TYPES OF ADVOCACY

human rights advocacy (to ensure exercise of human rights in practice); legislative advocacy (advocacy for adoption of new or change of the existing laws, adoption of policies, action plans, strategies, etc., application of adopted laws, strategic documents, action plans, etc.); advocating for change or raising awareness about certain issue or problem; international advocacy (advocacy before international and regional bodies or institutions in charge of monitoring the application of international documents or recommendations); advocating for “ordinary” matters relevant for everyday life of citizens (roads, electricity, waste disposal, etc.).

WHAT IS AN ADVOCACY CAMPAIGN?

An advocacy campaign is a set of activities aimed at acquiring support for a certain issue or a proposal. An effective advocacy can lead to a change in the manner in which certain matter or problem is defined in a strategy, law or practice.

Advocacy is also a very important way of organizing non-governmental organizations in order to solve a problem that concerns their everyday life. The more engaged the citizens, communities and NGOs the better the chance for a successful advocacy campaign. Apart from creating positive change, the involvement of citizens demonstrates the power of ordinary people to change the situation they face with.

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It is possible that your advocacy campaign does not turn positive immediately, but the advocacy itself opens the door to some new possibilities of involvement in decision-making processes and thereby democracy development. A successful advocacy campaign usually takes lots of time and therefore the failures you may face should not discourage you. It often happens that during advocacy campaign or upon successful completion thereof some new areas or issues come up, which require either a new campaign or follow up of the existing one.

THE BEGINNING – STEP BY STEP ADVOCACY

To make advocacy effective one must prepare and plan the advocacy activities. In that process, one should pay attention to a few very important elements of a good campaign:

define a long-term strategic goal or priority (what do you want or what can you change?);define a short-term goal that leads to fulfillment of the long-term goal (be specific and realistic);define a clear advocacy message (there could be several messages depending on those whom the messages are addressed to e.g. media, legislators, citizens, etc.); prepare an advocacy strategy or plan of advocacy activities (who, when, how, how much does it cost, etc.);

FOUNDATIONS OF ADVOCACY

Define a long-term goal: where the change is needed?

The issue that your organization is to advocate must be identified and defined. Long-term strategic goal can be very broad and ambitious (e.g. reduction of domestic violence), while its solution can lead to a whole series of different advocacy campaigns (e.g. advocating for adoption of laws, action plans, advocating for opening a larger number of shelters for domestic violence victims, advocating for a synchronous work of different state institutions, etc.). Certainly, it is good to focus your work on a few selected issues that you can realistically handle. Advocates who try to solve everything take a risk of solving nothing. Identify the issues that will have the greatest impact and meet the most important needs of your beneficiaries or citizens.

Define a short-term goal: What kind of change is needed?

Your goals can be focused on: changes in legislation, but also adoption of new laws and policies, action plans or activities of some institutions, which you hope to achieve through advocacy. These goals are based on the needs of your community and on what you deem most important to improve the situation and practice. Legislative advocacy is a fluid process, and you should be willing and ready to be flexible in your approach and setting your goals.

To be efficient, your goals and strategy must be defined at the very beginning of campaign. When deciding upon goals to be advocated, consider the political climate, success probability, researches and information about the issue of concern, money and other resources available as support and capacities of your organization. Have in mind that it is much easier to influence on new legal provisions than to change the existing ones. You should focus on change or support to work policy which is realistic, attainable and useful. This does not mean that you and your organization should select the simplest issues that are easy to attain, but if your

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organization is successful in this, that will give you not only enthusiasm and experience but also the credibility to work on much more complex matters.

Useful questions in process of defining advocacy goal:

What do you want to achieve? Short-term and long-term! Be as specific and realistic as possible. What would you insist on and what would be subject to compromise in negotiations with authorities? Compromise is a part of political process! What is possible to achieve in present circumstances? Can this goal bring together a larger number of very different organizations into a coalition? Be honest about your advantages and capacities as well as about your shortcomings! How much does it cost? Do you have resources required? Can you raise necessary funds?

Define message: Why the change is needed?

Your message is the reason due to which the others will support your goals. Your message is a general explanation of the problem. The message is often the simplest and most effective way to build awareness on the issue and win support. It is often said that facts speak for themselves, but these facts must be presented in an understandable form.

Make sure that message is:

A concise and convincing statement of your advocacy goal, which explains what you want to achieve, how and why! With the message you directly invite others to join you and/or take actions;Adjusted to target group(s) and that it can be presented in several different wordings (for media, citizens, authorities, etc.); Delivered in appropriate manner (evaluate what is effective, what will motivate the recipient, make sure that message educational); Bi simple! Presented by a right person and at right time! (It is very important who conveys the message for the issue that you advocate for will often be identified with the person who conveys it - personification); Accepted by all stakeholders involved in advocacy campaign. Make sure that all stakeholders convey the same message (this is particularly important when campaign is run by several organizations.); Easily accessible!

How to prepare advocacy strategy or plan of advocacy activities: who, when, how, how much does it cost, etc..?

Your strategy is key component of your advocacy campaign. The strategy is a well designed action plan with more precisely defined activities and timeframes within which these activities are to take place. Strategy development requires a more detail analysis of the issue, political context and overall surrounding. Advocacy in a legislative process often as aninternal strategy, which is focused on making direct influence on decision-makers and anexternal strategy, which deals with raising public awareness and mobilizing those outside of legislative bodies who may have an impact on decision-makers.

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THE QUESTIONS TO BE ASKED WHEN DEVELOPING A STRATEGY:

Who makes decisions relevant to your advocacy goal? Who may influence decision-making relevant to your advocacy goal? Who can help you in achieving your goals? Who will support you? Who are our partners? Who are your adversaries? Who is indecisive? Who is the primary target of your strategy? (decision-makers) Who is the secondary target of your strategy? (those who can influence on decision-makers e.g. political parties, international community, citizens, trade unions, etc.).

LET’S GO TO ACTION!

The different activities you can take in the course of a legislative advocacy campaign

Lobbying/ Legislative

processMass activities Media

Networks/Preparation of civil society

Legal activities

Lobbying withrepresent. of legislativeand executive powerPublichearingsand/ordiscussions in parliamentary committees (In)Formal influenceadoption of laws, policies, etc.PublicdebatesPreparingNGO draft laws,amendments, etc.;

ProtestsPetitionsMassactivities(writingletters,telephonecontacts,sendingfaxes,postcardswith single message, etc.)Public for a anddiscussionsConcerts,theatreplays, etc.

Letters,interviews,stories about particular cases Media reports PressconferencesPosters,billboards, etc. Paid ads/press releases Participation in TV and radio shows

Creatingalliances/networks/coalitionsAttainingpublicsupportPreparationof statistics, researches, analyses and other data; learningabout the opinion of public about certain issue Linking with other well-knownpublicpersonsLinking with a broader civil society, e.g. trade unions,academic community, etc.

Legalanalyses developedbased on internat.standardsInitiatingproceduresbefore local courts or otherinstitutionsUtilizationof internat. mechanisms (use of recommendations of internat.bodies,internat.advocacy, internat.courts, etc.)

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Since a successful campaign may be a long and very complex process, it would be useful if NGOs break down their advocacy strategy into several components. In doing so, one shall particularly pay attention to the following elements:

1. Research and analysis; 2. Building coalitions or alliances with other NGOs; 3. Public mobility; 4. Use of media; 5. Legislative advocacy – formal and informal dialogue with representatives of

legislative and executive power; public hearings; 6. lobbying;7. post-campaign activities.

1. Research and analysis

Information is power. Time invested in collecting information about legislative process at the very beginning can help you avoid very simple mistakes and save a lot of time in long-term. The better you understand the formal procedures for decision-making, the more powerful you will be in terms of influencing decision-making process.

At the very beginning of a campaign, you should try to find as much as possible about the following:

Who is in charge of the issue that you are to advocate for in your campaign? Are there any governmental bodies in charge of monitoring or responsible for the issue? Are there any governmental strategies, draft laws, action plans about the issue concerned? Are there any formal mechanisms through which you can make impact on decision-makers? If so, what are the possibilities for making an informal influence? Are there any parliamentarians interested in solving the problem, which is to be tackled through your advocacy campaign? Is there any committee or sub-committee in charge of regulations applicable to the subject matter? Who currently works in the field subject to advocacy and what? Who or what can influence the field subject to advocacy? Who or what can influence the position of government about this issue in questions, e.g. economy, other countries, and financial institutions?Did the government sign any international treaties relevant for problem solving and if so, which? Are there any monitoring mechanisms integrated in those treaties? Arguments: collect and examine draft laws or laws, international standards of human rights, obligations under international conventions, data and studies, and if needed, make an analysis. Anticipate and learn about the counter-arguments to your position and prepare your responses to such counter-arguments. To convince the audience, use common sense and facts; If the issue was earlier discussed before the parliament or government, investigate what has stopped or interrupted the process; Before you start any legislative advocacy, you should be aware of the way the system functions. How are the draft texts made and how are they submitted to relevant bodies? Do these drafts go through committees? Who are the members of certain committees, and who are the secretaries? How can NGOs participate in this process?

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2. Building coalitions or alliances with other non-governmental organizations

Advocating through coalition will reinforce your advocacy campaigns. Why is that?

It gives legitimacy to your request; You win broader support, whereby your campaign becomes more powerful. The power is in numbers; It enables an efficient division of work and better utilization of different capacities; It provides you with better access to and greater influence on different target groups.

However, coalitions can also be extremely fragile, therefore it is important to define at the very beginning the joint goals and strategy of coalition and decide whether the coalition is going to be formal or informal. The coalition is the least common denominator, the motive or goal of the organizations or groups of civil society gathered around it. Should there be any compromise or an agreement at the table, the entire group should decide about it.

In building coalition, one should pay attention to:

Structure of coalition. Collaborate with NGOs that deal with similar issues. Sometimes it is useful to be open for others who are interested in participation, regardless other their potential involvement; Ways of decision making; Being aware of strengths and weaknesses; Providing flow of information within coalition; Develop a system of information exchange between interested organizations. Through a clear communication, you can coordinate your advocacy efforts and monitor the positions of decision-makers. Make sure that all members of coalition are conveying the same message. Coalitions usually function the best when one organization takes leadership and takes care of coalition organization, informing other organizations about the meetings and gatherings and exchanging information; Fund raising and distribution of resources can be a cause of conflict. Be frank with members of coalition when it comes to amount of money to be raised for campaign and distribution thereof. If no money is to be raised, share with your coalition partners information about the resources that you and the other organizations can realistically bring in to the process; Are there any other stakeholders who could make an influence on the matter of concern, e.g. members of academic community, civil servants who are retired, and members of religious communities? Do you find it useful to involve them in the process?

3. Public mobilization

Representatives of executive and legislative powers are responsible to citizens who elected them. When advocating, it is very important to demonstrate that you have support of a large number of citizens or a group, the interests of which you represent. One should always think of mobilization of general public in the broadest possible sense. Support of general public can often prevent attacks on legitimacy of your cause and add to its importance.

Apart from that, advocated changes often require that society as whole or a part of it change its position about certain issue. Advocacy often contains elements of public education. Also,

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public support makes legislative advocacy much easier and it ensures that the law, once adopted, will be well-accepted and implemented.

When mobilizing public, have in mind the following:

How much does public know or does not know about the matter of concern? Make your message understandable to broader public. Public can easily identify itself with a clear, understandable and universal message and support it;Be open to information that comes from organizations which work directly with citizens in order to make sure that you included everything that is identified as the interest and the need of citizens; Keep the citizens informed of the course of advocacy campaign and remind them constantly of the change that the campaign is going to introduce to their lives. Is it useful to actively involve in the advocacy campaign an individual well known to general public (celebrities – singers, athletes, actors, etc.)

4. Use of media

Media can make a strong influence on the work of governments and conduct of individual governmental officials in relation to the issues that are of importance to citizens. Media can also influence priorities of the government, for media pressure can often make more effect than a good argument. By its nature, media reach the audience that you otherwise would not be able to reach or would have reached with the great difficulty. Public officials who ignore the promises made could face the situation in which they would be forced to respond to public pressure created due to media reporting.

POSSIBILITY FOR AN EFFICIENT COMMUNICIATION WITH OTHER MEDIA

Press releases; Press conferences; Interviews; Writing editorials and thematic contributions; Paid ads, open letters and TV shows; Events attractive to media – public protests, concerts, theatre plays, etc.; Appointing a PR officer within organization or only for the purpose of the campaign and development of media directory; Developing informal cooperation with chief editors of different media, newspapers, etc.

ADVICE FOR AN EFFECTIVE COMMUNICATION WITH MEDIA DURING

ADVOCACY CAMAPIGN

Information should be brief, clear and preferably attractive. You have to be comprehensible to an average media consumer (as if you were speaking of it briefly to your family members or friends). Offer some life stories rather than statistics and dry information. Whenever possible, try to link it to “burning” political events; Make no pressure on media. The scope of attention paid to media is rather brief, therefore the information should be provided at the right time. Sometimes is more important who is speaking rather than what has been said – be aware of this;

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When communicating with media, be: brief, concise, do not give more than five points, try to catch attention by the very first sentence, think of the message, and make specific proposals. Sometimes you need to educate media about the problem; Advocates must make honest statements, provide precise information and always be ready to talk to media, even when the campaign is over. This way, you build credibility and win trust of media. Although electronic media are very popular, you should bear in mind that key officials read newspapers every morning. Also, have in mind that not much information is provided over weekends, so you should take advantage of that during campaign.

5. Legislative advocacy

Legislative advocacy implies advocating for development, adoption or change of a law, policy and other strategic document based on human rights standards. Legislative advocacy is particularly important because it reinforces the concept of responsibility of a legislator and other authorities toward citizens or communities they represent, the foundation of any democratic society. Generally speaking, legislative advocacy:

o is part of a broader advocacy strategy; o implies an influence on formal and informal decision-makers; o is focused not only on legislator but also on executive power; o requires a good understanding of formal process of decision-making (Constitution,

Rules of Procedure, etc.); o requires good knowledge of political situation and relations in society; o implies cooperation with committees within parliament, caucuses of political parties

or individual representatives;

Very often a successful outcome of campaign depends on how much the organizations know and use different elements of legislative advocacy, including public hearing.

Public hearing

Public hearings usually take place within parliamentary committees. In developed democracies public hearing is a usual part of parliament work. It is a functional mechanism for dialogue with public, citizens, civil society, business sector, etc. Public hearings are often mistaken for public discussions, which is not the same thing. For the purpose of public discussions, there are usually committees established within the parliament. In practice, parliamentarians often do not attend these discussions, which are mainly conducted by different ministries. Ministries also prepare conclusions by selecting “the appropriate” opinions and positions. Public discussions are conducted with a broader public and they usually last longer and take place in field. Agenda of public discussions does not limit the number of speakers, although the discussion is often dominated by a few respondents and dedicated to a certain law or policy. On the other hand, public hearings enable that:

o competent parliamentary committee convenes and conduct a public hearing;o committee (parliament) hears directly different opinions, positions and arguments; o discussion is conducted on professional aspects of the law or policy to be adopted

(opinions of experts, university professors, researchers, NGOs or citizens, representatives of competent ministries and institutions);

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o organizations conducting a campaign independently select an expert within their community to address the committee and speak of the problem and present recommendations;

o consider all relevant issues in an open dialogue and provide answers to committee members and other parliamentarians present;

o one directly lobby certain parliamentarians before and after hearing; o conclusions made by committee after the hearing are submitted to parliament or

government as the position of the committee concerning certain law, policy, etc. Conclusions can also serve as a recommendation of the committee addressed to parliament or governments for their future activities.

Practical aspects of public hearing

o All participants are invited and speakers selected in advance; o Written versions of the speeches are prepared and distributed in advance as well as

other pertaining documents such as studies, statistics, comparative and legal analyses, etc.

o Committee members are informed in advance about the participants and organizations; o Media are invited, although the committee can decide to hold a closed type hearing; o The address of the speakers is limited to 5-10 minutes, while the additional time is

used for discussion with committee members and providing them with additional explanations and information.

6. Lobbying – an important activity of any advocacy campaign

One of the most important moments during an advocacy campaign is the brief time you have in direct contact with decision-makers. In order to use this time in the best possible manner, prepare yourself in advance and be prepared for the worst case scenario. Successful lobbying often depends on credibility you enjoy in public. Are you really perceived as a representative of those whom you represent? Lobbying can take place during random meetings or during scheduled appointments. Here is some advice for successful lobbying:

Find out the position of a person or institution you are meeting with prior to your meeting!Use carefully and efficiently the limited time you have with decision-makers!Select the information you want to reiterate. Do not exaggerate with information!Deliver your strategic document to your collocutor in advance. Deliver promotional material about your organization, coalition and/or the action. Prepare your recommendations and requests.If you go to a meeting as group, designate the roles and prepare yourselves, rehears!Listen to the collocutor, be positive and vigorous but never rude; If you do not have or do not know the answer, be frank and deliver the information sought subsequently; The meeting is not the only chance to make an influence on decision-makers; Send a letter of thanks and remind the collocutor of what you have agreed in the meeting;

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ADVICE FOR SUCCESSFUL LOBBYING

The approach you use while communicating with those whose support you hope to win is very important. Always be kind and polite – even when you disagree. Use the appropriate titles and polite and appropriate register in both verbal and written communication. Quarrelsome approach will win no one to your side. If a person whom you talk to becomes hostile, the best thing to do is to go to next question or simply thank him/her for the time he/she found to meet you.

Be an active listener and respond to what you hear. Have understanding for honest difference in opinions. Never threat such a person! Threats will close the doors forever and access is the key to an effective lobbying. Never insult or criticize the other groups or individuals – that will undermine your own credibility. Have in mind that those who are your adversaries today may become your allies tomorrow.

Never forget to acknowledge and express your gratitude to those who support your position – even if you fail in you efforts. Adhere to protocol, unless your strategy is based on non-compliance. Use facts rather than rhetoric and always avoid personal attacks.

7. Post-campaign activities: And now what?

Even if you win, your role of an activist should end here. Monitoring of application of the law or policy which you successfully advocated for is the key element of an efficient advocacy. Activities should continue to monitor application of law in practice and raise the questions about the problems in application and interpretation of law contrary to intention of the legislator.

By monitoring of law application, some new areas may be discovered, which require further elaboration and which are not covered by any law, or the areas in which governmental officials (police, judiciary, administration) require training concerning application of certain law. More on application of law can be found in the part of the Guide that deals with that particular matter.

Improve you advocacy

There is nothing as successful as success itself. Continuous evaluation and adjustment of your advocacy work is the best way to ensure success. Basic idea of self-assessment is to help you receive useful information and, if necessary, change your strategies or goals. Adjustability, creativity and persistence are the qualities of successful advocates. If one strategy does not work, try another, different one. Legislative advocacy is a gradual process, which requires time, energy, persistence and stamina. Have in mind the following:

Non-governmental organizations must search for strong and efficient representatives in legislative bodies and make sure that they are praised in public – when they wish so – and at home, namely among colleagues and in other segments of civil society. Also, have in mind that activists working in legislation have neither eternal enemies nor eternal friends. Advocacy has its own rhythm, ups and downs, and some calm moments in between. The campaign can be both quite and effective. There are moments

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when the best strategic decision is not to do anything. Campaigns which methodically build support and intensity can lead to significant and permanent changes.It is necessary to be familiar with the vote counting system, no matter how hard and boring that may be. Legislative bodies have its own peculiarities and illogicalities, but one should learn about them through experience. It is important to monitor voting process in legislative branch and use the information obtained to call to account the elected officials towards their electorate.Activists are particularly responsible for making the activities conducted within executive authorities comprehensible to people working on the grassroots level.Activists must face the challenges of changing tactics and strategies in a way to disregard those which are ineffective and introduce some new approaches to campaigns. In order to respond to such challenges, the activists must be very attentive listeners and must hear what the base, legislator, media, international community and other stakeholders in civil society say about the matter of concern. Listening implies paying attention to what has been said, evaluating the information and, if necessary, introducing the changes.

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Sources used in preparation of this Guide

1. Combating Discrimination, A Training Manual, Human European Consultancy in partnership with Migration Policy Group, September 2005;

2. Combating Discrimination in the European Union, European Commission Directorate General Employment, Social Affairs and Equal Opportunities Brussels, revised text, 2005;

3. Putting Equality into practice: What role for positive action?, European Commission, Directorate General Employment, Social Affairs and Equal Opportunities, March 2007;

4. The Prohibition of Discrimination under European Human Rights Law – Relevance for EU Racial and Employment Equality Directives, Prof. O. De. Schutter, European Network of Legal Experts in the Non-Discrimination field, European Commission Directorate General Employment, Social Affairs and Equal Opportunities, February 2005;

5. Zabrana diskriminacije prema Evropskoj konvenciji o ljudskim pravima ( lan 14.)- Priru nik za pravnike, [Prohibition of discrimination pursuant to ECHR, Article 14, a manual for lawyers], INTERIGHTS, 2006;

6. „Priru nik za advokate o zastupanju Roma - žrtava diskriminacije 7. “ [A lawyers’ manual for representation of Roma – victims of discrimination] –

European Roma Rights Centre, Humanitarian Law Fund and Centre for Minority Rights, September 2005.

CONTENT

Introduction ..........................................................................................................................1 Legislative Advocacy Action Guide .........................................................................2 Aim of the Guide........................................................................................................2

Bosnia and Herzegovina ......................................................................................................3 General Country Background.....................................................................................4 Internal organization of BiH ......................................................................................5 Position of BiH in the Process of Association with the EU.......................................6 BiH and Civil Society ................................................................................................7 Good and Bad Practices – Public Advocacy..............................................................9 Analyses of Rules of Procedure and Laws ..............................................................11 Conclusions and Recommendations.........................................................................13

Croatia ...............................................................................................................................15 General Country Background...................................................................................16 Relations between Croatia and the EU.....................................................................16 Relationship between the State and Civil Society Organizations in Croatia ...........18 Legislative Framework.............................................................................................18 Croatia and Civil Society ........................................................................................20 Public Advocacy Practices .......................................................................................22 Formal Consultation Process Informal Consultation Process andCombined Consultation Process...............................................................................24 Conclusions and Recommendations.........................................................................24

Serbia...................................................................................................................................27 General Country Background ..................................................................................28 Position of the Republic of Serbia in the EU Accession Process.............................29 Serbia and the Civil Society .....................................................................................29 Good and Bad Public Advocacy Practices...............................................................31 Analyses of Rules of Procedures and Laws .............................................................32 Communication Between Civil Society Organizations andthe State: Examples of Good Practice ......................................................................37 Conclusions and Recommendations ........................................................................38

Prohibition of discrimination in European Union legislation ........................................41 Introduction .............................................................................................................42 About this part of Guide...........................................................................................42

I EU – anti-discrimination standards in the EU – possibilities for advocacy ...............43 1. Background on the European Union................................................................43

1.2. Sources of law of the EU ......................................................................44 1.2.1. European legislation...............................................................44 1.2.2. Institutions and decision-making ...........................................45

2. EU norms on prohibition of discrimination: principles and directives.........48 2.1. Basic standards and definitions in directives – key concepts for discussion................................................................................................50

a)Sex/gender/gender identity ...........................................................56 b) Race and ethnic background ........................................................57 c) Religion and belief, disability, age and sexual orientation .........58

3. Case study: best practices in the implementation ofantidiscrimination principle. .................................................................................59

3.1. Implementation of anti-discrimination directives in national legislations ...................................................................................................59 3.2. Bodies for securing equality and promoting equal treatment (Equality bodies) .........................................................................60

II CoE – mechanisms and possibilities for strategic litigation ......................................62 1. Council of Europe...............................................................................................62

1.1. The European Convention on Human Rights .......................................62 1.2. The principle of non Discrimination according to the ECHR ..............63

2. Judicial protection .............................................................................................64 2.1. European Court of Human Rights.........................................................64 2.2. Initiation of proceedings........................................................................65 2.3. Conditions of admissibility of an application to the Court ..................65 2.4. Termination of proceedings before the Court .......................................67 2.5. Enforcement of judgments of the Court ................................................67

Annex I/ Key terminology ..................................................................................................68 Annex II/ Anti – Discrimination Directives EU...................................................................70 Annex III/ List of the most important courts cases on discrimination ................................71

1. European court of justice .....................................................................................71 2. European court for human rights..........................................................................71

Monitoring the Adoption and Implementation of Laws - Anti-Discrimination...........73 Why Monitor? ..........................................................................................................74 What Can Monitoring Do?.......................................................................................74 What is Monitoring the Legislation Adoption to Ensure Non-Discrimination or Monitoring the Impact of a Policy or Law?.........................................................75 What Should You Do During the Legislative Process? ...........................................75 How Should You Monitor Implementation of Laws for Discriminatory Impact?...76 Monitoring and the Government, Friend or Foe? ....................................................77 How Do You Monitor Impact & Implementation?..................................................78 What are Some Important Principles for Monitoring Protected Categories?...........82 How Do You Identify Discrimination?....................................................................83 How Do You Present Your Findings?......................................................................84 What Are Some of the Challenges to Effective Monitoring? ..................................84

Annex 1 Draft synthesis questionnaire.................................................................................85 Advocacy – tips and advices .............................................................................................89

What is advocacy?....................................................................................................90 Why advocacy? ........................................................................................................90 Types of advocacy....................................................................................................90 What is an advocacy campaign? ..............................................................................90 The beginning – step by step advocacy ..................................................................91 Foundations of advocacy .........................................................................................91 The questions to be asked when developing a strategy............................................93 Let’s go to action! ....................................................................................................93

1. Research and analysis.....................................................................................94 2. Building coalitions or alliances with other NGOs .........................................95 3. Public mobilization ........................................................................................95 4. Use of media...................................................................................................96

Possibility for an efficient communication with other media ......................96 Advice for an effective communication with media during advocacy campaign ....................................................................................................96

5. Legislative advocacy .....................................................................................97 Public hearing...............................................................................................97

6. Lobbying .......................................................................................................98 7. Post-campaign activities.................................................................................99