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Comparative Perspectives on the Enforcement and Effectiveness of Antidiscrimination Law

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 28))

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Abstract

The development of a special antidiscrimination legal framework in Croatia began as a consequence of alignment of Croatian legislation with the acquis communautaire pursuant to duty set in Article 69 of the Stabilisation and Association Agreement (SAA) between Croatia and the EU. Harmonization with key EU Antidiscrimination Directives (Racial Equality Directive 2000/43/EC; Framework Directive 2000/78/EC; Gender Goods and Services Directive 2004/113/EC; and Gender Equality Directive 2006/54/EC) resulted in the adoption of the Antidiscrimination Act (ADA) in 2008, the Gender Equality Act (GEA) in 2003, and a new GEA in 2008. Besides in the ADA as lex generalis and in the GEA as lex specialis, antidiscrimination provisions can be found scattered in numerous statutes of both public and private law, such as the Constitutional Act on the Rights of National Minorities, Same-Sex Communities Act, Same-Sex Persons Life Partnership Act, Labour Act, Act on Professional Rehabilitation and Employment of Persons with Disabilities, People’s Ombudsman Act, Act on Protection from Domestic Violence, Criminal Code, etc. Beyond that, protection against discrimination and guarantee of equal treatment is entrenched in the Croatian legal system and forms part of the Constitution of the Republic of Croatia and of numerous international agreements ratified by it, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and its Protocols. Being an EU Member State, Croatia adopts the Union’s goals and values of combating discrimination and promoting equality.

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Notes

  1. 1.

    Act on Confirmation of the Stabilisation and Association Agreement between the Republic of Croatia and the European Communities and their Member States, OG IA Nos. 14/01, 15/01, 14/02, 1/05, 7/05, 9/05 and 11/06.

  2. 2.

    Council Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L 180/22; Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16; Council Directive 2004/113/EC of 13 December 2004, implementing the principle of equal treatment between women and men in the access to and supply of goods and services [2004] OJ L 373/37; Directive 2006/54/EC (recast) of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment between men and women in matters of employment and occupation [2006] OJ L 204/23.

  3. 3.

    OG Nos. 85/08 and 112/12.

  4. 4.

    OG Nos. 82/08, 125/11, 20/12 and 138/12. The GEA from 2003 was published in OG No. 116/2003.

  5. 5.

    Constitutional Act on the Rights of National Minorities, OG Nos. 155/02, 47/10, 80/10 and 93/11; Same-Sex Communities Act, OG Nos. 116/03 and 92/14; Same-Sex Persons Life Partnership Act, OG No. 92/14; Labour Act, OG No. 93/14; Act on Professional Rehabilitation and Employment of Persons with Disabilities, OG Nos. 157/13 and 152/14; People’s Ombudsman Act, OG No. 76/12; Act on Protection from Domestic Violence, OG Nos. 137/09, 14/10 and 60/10; Criminal Code, OG Nos. 125/11, 144/12, 56/15 and 61/15.

  6. 6.

    Articles 3 and 14(1) Constitution, OG Nos. 56/90, 135/97, 8/98 (consolidated text), 113/00, 124/00 (consolidated text), 28/01, 41/01 (consolidated text), 55/01 (correction), 76/10, 85/10 (consolidated text) and 5/14.

  7. 7.

    The ECHR was ratified by the Republic of Croatia in 1997. See Act on Confirmation of the ECHR and Protocols Nos. 1, 4, 6, 7 and 11, OG IA Nos. 18/97, 6/99 and 8/99; Act on Confirmation of ECHR Protocol No. 13, OG IA Nos. 14/02 and 13/03; Act on Confirmation of ECHR Protocol No. 12, OG IA Nos. 14/02 and 9/05; Act on Confirmation of ECHR Protocol No. 14, OG IA Nos. 1/06 and 2/10.

  8. 8.

    Act on Confirmation of Treaty between Member States of the European Union and the Republic of Croatia concerning the Accession of the Republic of Croatia to the European Union, OG IA Nos. 2/12 and 5/13. See also OJ L 112 of 24 April 2012.

  9. 9.

    Criminal Code, OG Nos. 125/11, 144/12, 56/15 and 61/15.

  10. 10.

    Judgement of the Municipal Court in Koprivnica K-440/13 of 13 March 2014, relating to a criminal act of public incitement to violence and hatred.

  11. 11.

    Information about the numbers and the type of judicial procedures is taken from the Ombudsman’s Annual Reports, presented to the public and the Croatian Parliament on a yearly basis and available at: http://www.ombudsman.hr/index.php/en/.

  12. 12.

    See Case C-54/07, Feryn [2008] ECR I-05187; Case C-409/95, Marshall [1997] ECR I-06363; Case C-14/83, von Colson [1984] ECR I-01891; Case C-177/88, Dekker [1990] ECR I-03941, etc.

  13. 13.

    About the lack of preventive enforcement methods such as education on antidiscrimination, see Vasiljević (2015), pp. 64 et seq.

  14. 14.

    See also Special Part, Chapter IX on the crimes against humanity and human dignity, particularly Article 88 (genocide), Article 89 (crime of aggression), and Art. 90 (crime against humanity). E.g. Judgement of the Municipal (Criminal) Court in Zagreb II-KMp-209/2008 due to violation of Articles 331 (public order) and 89 CC during a public gathering of persons of homosexual orientation at the “Zagreb Pride 2008.”

  15. 15.

    Bodiroga-Vukobrat and Martinović (2013), p. 11.

  16. 16.

    Court protection is also regulated in Article 30 GEA. See infra, Answer to Question No. 6.

  17. 17.

    OG Nos. 35/05, 41/08, 125/11 and 78/15.

  18. 18.

    Protection of individuals against normative discrimination occurs through evaluation of statutory acts in accordance with the Constitution and of other regulations in accordance with the Constitution and statutory acts pursuant to Article 55 of the Constitutional Court Act of the Republic of Croatia (CCARC), OG Nos. 99/99, 29/02 and 49/02 (consolidated text).

  19. 19.

    According to Articles 62–80 CCARC, everyone who deems that the individual act of a state body, a body of local and regional self-government, or of a legal person with a public authority, which decided about his/her rights and obligations, or about suspicion on or accusation of a criminal act, has violated his/her human rights or fundamental freedoms guaranteed by the Constitution, or his/her right to local and regional self-government guaranteed by the Constitution, may lodge such a complaint. See Decision of the Constitutional Court No. U-III/3192/2003 of 17 May 2006, para. 6: “Article 14(1) of the Constitution contains a constitutional guarantee of non-discrimination. Discrimination on the ground of Article 14(1) of the Constitution is not an independent legal basis for the constitutional complaint, but it has to be pleaded together with some other (material) constitutional right guaranteed by the Constitution.”

  20. 20.

    According to Article 55(3) CCARC, the Constitutional Court may annul a legal act or its separate provisions, taking into account all the circumstances important for the protection of constitutionality and legality, and especially bearing in mind how seriously it violates the Constitution or the law and the interest of legal security: if it violates human rights and fundamental freedoms guaranteed by the Constitution; if, ungrounded, it places some individuals, groups or associations in a more or a less favourable position.

  21. 21.

    Articles 17(2) and 24(4) of the ADA. The civil procedure in Croatia is regulated by Civil Procedure Act, OG Nos. 4/77, 36/77, 36/80, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90, 35/91, 53/91, 91/92, 58/93, 112/99, 129/00, 88/01, 117/03, 88/05, 02/07, 96/08, 84/08, 123/08, 57/11, 25/13 and 89/14. Some provisions on judicial structure, subject matter and functional jurisdiction can be found in Act on Courts, OG Nos. 28/13, 33/15, 82/15.

  22. 22.

    Articles 24(3) ADA and Article 30(3) GEA.

  23. 23.

    See judgements of the Supreme Court of the Republic of Croatia Gž-25/11-2 and Gž-41/11-2 of 28 February 2012, analysed in Mišćenić (2015), p. 128.

  24. 24.

    Besides the above-mentioned regular courts, specialized courts (such as commercial courts, the High Commercial Court, administrative courts, the High Administrative Court, misdemeanour courts, and the High Misdemeanour Court) also enforce provisions containing the prohibition of discrimination or guarantee of equality.

  25. 25.

    See Decision of the Constitutional Court No. U-I-1152/2000 of 18 April 2007, OG No. 43/07 on the unconstitutionality of provisions of the Retirement Insurance Act, providing different conditions for the acquisition of certain rights for retirement insurance for women and men.

  26. 26.

    Pursuant to Article 12(2) ADA, the Ombudsman also does the following: receives notifications on discrimination; offers independent assistance to victims by receiving their complaints and providing them with necessary information on their rights and obligations and forms of protection; examines complaints and takes actions for elimination of discrimination and for protection of victims; files criminal charges related to discrimination cases to the competent State attorney’s office; and informs the Croatian Parliament on the occurrence of discrimination in annual reports, etc.

  27. 27.

    For example, direct discrimination is prohibited by Article 2(1) ADA, Article 7(1) GEA, Article 21(3) SSCA and Article 7(4) LA. Prohibition of indirect discrimination is contained in Article 2(2) ADA, Article 7(2) GEA, Article 21(4) SSCA and Article 7(4) LA. Harassment and sexual harassment are prohibited by Article 3 ADA and Article 8 GEA. In Article 4(1) ADA, Article 6(5) GEA and Article 21(2) SSCA, enticement of another person to discriminate is considered to be discrimination. Forced and systematic separation of persons based on some grounds referred to in Article 1(1) ADA (segregation) is prohibited by Article 5 ADA. Article 6 ADA enumerates more serious forms of discrimination such as multiple discrimination, repeated discrimination, continued discrimination and discrimination with particularly harmful consequences for the victim.

  28. 28.

    Article 1(2) ADA. This is in line with Case C-303/06, Coleman [2008] ECR I-05603, where the ECJ held that the prohibition of discrimination on the grounds of disability includes a mother taking care of a disabled child.

  29. 29.

    Article 1(3) ADA. Article 1(1) ADA prohibits discrimination on 21 taxatively enumerated grounds: race, ethnic affiliation, colour, gender, language, religion, political or other belief, national or social origin, property, trade union membership, education, social status, marital status, family status, age, health condition, disability, genetic heritage, native identity, expression and sexual orientation.

  30. 30.

    In accordance with their specific needs, persons with disabilities should be enabled when it would not unreasonably burden the person obliged to provide for it. This can be accomplished through providing access to the use of publicly available resources, participation in the public and social life, and giving access to workplace and appropriate working conditions through adaptation of infrastructure and premises and through use of equipment.

  31. 31.

    Article 7 ADA and Article 2 GEA.

  32. 32.

    Judgement of the Municipal Court in Varaždin P-3153/10-89 of 12 July 2012, confirmed by Judgement of the County Court in Varaždin Gž-5048/12-2 of 9 July 2013.

  33. 33.

    Judgement of the Municipal Court in Varaždin P. 1802/11 from February 2013, not published. Available at: http://www.tportal.hr/vijesti/hrvatska/242279/Klicek-nije-diskriminirao-varazdinskog-gay-profesora.html.

  34. 34.

    According to Article 7(4) LA, such behaviour concerns selection criteria, recruiting and promotion conditions, professional improvement, retraining, and vocational training pursuant to provisions of the LA and special laws.

  35. 35.

    See supra, Answer to Question No. 4.

  36. 36.

    Under Article 19(1) COA any natural and legal person is entitled to the protection of its personality rights under the conditions provided by law. Article 19(2) COA enumerates in an exemplary manner the rights to life, physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, freedom and others.

  37. 37.

    Public incitement to violence and hatred in Article 325 Criminal Code.

  38. 38.

    The following statement was published in the daily newspaper ‘Jutarnji list’ on 16 November 2010: ‘In mine representation gays could also not play. I do not see the man of a gay representation going with head onto the football cleat, but I do see him as a ballet dancer, writer, journalist.’

  39. 39.

    Judgements of the County Court in Zagreb 15 Pnz-6/10-27 of 24 March 2011 and of the Supreme Court of the Republic of Croatia Gž-12/11-2 of 18 April 2012. Besides being in direct conflict with the conclusions of the ECJ/CJEU in cases C-54/07, Feryn [2008] ECR I-05187 and C-81/12, Asociaţia Accept [2013] EU:C:2013:275, these rulings violated the ADA’s provision on the burden of proof.

  40. 40.

    The statement published in the daily newspaper ‘Večernji list’ in November 2010: “there is no room for a gay in the Fiery Ones […] and luckily, only healthy people play football.”

  41. 41.

    Judgements of the County Court in Zagreb Pnz-7/10 of 2 May 2011 and Pnz-8/10 of 28 July 2011.

  42. 42.

    In 2010, the priest published several articles on his Internet blog and gave other public statements in the media that discriminated persons of same-sex orientation and encouraged violence against them. The County Court in Rijeka found discrimination and prohibited the further publication of discriminatory texts; it also ordered the removal of all discriminatory texts from the blog, as well as the publication of this judgement in two daily newspapers at the defendant’s cost. See the Judgement of the County Court in Rijeka P-15/2010 of 3 October 2011 as confirmed by the Judgement of the Supreme Court of the Republic of Croatia Gž-38/2011-2 of 7 March 2012.

  43. 43.

    The statement published in the daily newspaper ‘Večernji list’ from 27 November 2012 explained that minor prisoners are placed in the cells with adult prisoners “only under the condition that these are people who will not have a negative impact on them. This means that we cannot accommodate them in a room with gays, addicts, or recidivists of criminal offences.” While the County Court in Zagreb Pnz-2/13 of 5 June 2013 rejected the claim, the Supreme Court of the Republic of Croatia Gž-21/13-2 of 10 September 2013 overruled the first instance judgement and adopted the antidiscrimination claim.

  44. 44.

    Article 17(1)(1)-(4) ADA. However, the fourth action can be raised only if a violation happened through the media or information on the conduct violating the right to equal treatment was published in the media, and if the publication of the ruling is necessary for the purpose of complete damage compensation or protection against unequal treatment in future cases.

  45. 45.

    According to Article 24(2) ADA, a county court can be requested to (1) establish that the defendant’s conduct has violated the right to equal treatment in relation to the members of the group, (2) prohibit activities that violate or may violate the right to equal treatment, or to carry out activities eliminating discrimination or its consequences in relation to members of the group, or (3) publish in the media the ruling establishing the violation of the right to equal treatment at the defendant’s cost.

  46. 46.

    According to Article 20 ADA, a party in court or other proceeding claiming violation of his or her right to equal treatment has a duty to show it is plausible that discrimination has taken place, and according to Article 30(4) GEA, to demonstrate facts to the court that justify the doubts on discrimination. Only then the burden of proof that there was no discrimination is shifted to the opposite party.

  47. 47.

    See judgements in the collective redress proceedings of the County Court in Zagreb 15 Pnz-6/10-27 of 24 March 2011 and of the Supreme Court Gž 12/11-2 of 18 April 2012 analysed in Mišćenić (2015), p. 131.

  48. 48.

    See Mišćenić (2014), pp. 100 et seq.

  49. 49.

    According to Article 93 of the Constitution, the Ombudsman is an autonomous and independent body elected by the Croatian Parliament for a time period of eight years and is responsible for the protection and promotion of human rights and freedoms established by the Constitution, statutory acts, and international legal acts on human rights and freedoms ratified by the Republic of Croatia. Everyone considering that there has been a threat or violation of their human rights and fundamental freedom, because of illegal or irregular action of governmental bodies, bodies of local and regional self-government, and bodies vested with public authority, may lodge a complaint to the Ombudsman.

  50. 50.

    Apart from being accredited at an “A” status by the International Coordinating Committee for Human Rights, the Ombudsman is also the National Equality Body—NEB in accordance with the ADA provision and the National Preventive Mechanism against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment—NPM pursuant to the 9b Optional Protocol to the UN Convention Against Torture and Cruel Inhuman or Degrading Treatment or Punishment from 2002 and Act on National Preventive Mechanisms against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, OG Nos. 18/11 and 33/15.

  51. 51.

    Provisions concerning non-discrimination can be found in the People’s Ombudsman Act OG No. 76/12, Children’s Ombudsman Act OG Nos. 96/03, 125/11 and 20/12, and Disability Ombudsman Act OG Nos. 107/07, 125/11 and 20/12.

  52. 52.

    For more details on collective redress in Croatian antidiscrimination law, consult Mišćenić (2014), p. 104.

  53. 53.

    For example, the adoption of the Medically Assisted Procreation Act in 2012, OG No. 86/12, that does not apply to same-sex communities, resulted in a strong disapproval of the LGBT community and initiated a debate in the Croatian media (as well as society) on whether same-sex couples should be allowed to adopt and raise children. The Croatian Prime Minister Milanović Z. reacted by publicly announcing a further extension of the rights for same-sex communities, which should enjoy rights and obligations equivalent to those in a heterosexual marriage, with the exception of the right to adopt children.

  54. 54.

    See Mišćenić (2018).

  55. 55.

    Decision of the Constitutional Court regarding the finalization of the surveillance procedure on constitutionality and legality of pursuing a State referendum held on 1 December 2013, when Art. 62 of the Constitution of the Republic of Croatia was supplemented by the new para. 2, No. SuP-O-1/2014 of 14 January 2014, OG No. 5/2014.

  56. 56.

    On their official webpage, the association promotes the prevention of a legal regulation that equalizes same-sex communities and marriage and a denial of rights deriving from it, as well as the protection of children from adoption by same-sex couples. Available at: http://referendumobraku.uimeobitelji.net/2014/07/16/name-family-new-life-partnership-act/#more-5671.

  57. 57.

    Until the adoption of the Same-Sex Persons Life Partnership Act (SSPLPA), OG No. 92/14, partners of same-sex communities were deprived of the majority of rights granted to spouses or extramarital partners. In accordance with the ECJ/CJEU practice, the Croatian courts are now obliged to follow the outcome from cases C-267/06, Maruko [2008] ECR I-01757 and C-147/08, Römer [2011] ECR I-03591, according to which Articles 1-2 and 3(1)(c) of the Framework Directive 2000/78/EC preclude national legislation that differentiates life partners from spouses regarding their rights and obligations (i.e. benefits, when life partnership places persons of the same sex in a situation comparable to that of spouses).

  58. 58.

    OG Nos. 155/02, 47/10, 80/10 and 93/11.

  59. 59.

    Decision of the Constitutional Court No. U-VIIR-4640/2014 of 12 August 2014, OG No. 104/14.

  60. 60.

    By its Decision No. U-II-6110/2013 of 12 August 2014, OG No. 104/14, the Constitutional Court annulled Article 22 of the Statutory Decision on amendments of the Statute of the City of Vukovar, Classification: 012-03/09-01/01, No. 2196/01-01-13-31 of 4 November 2013 (OJ of the City of Vukovar No. 7/13), adopted by the City Council of the City of Vukovar, saying: “On the ground of provision of Art. 2 para. 2 and para. 4 of this Statute the City of Vukovar is completely exempted from application of provisions of the Act on the Use of the Language and Letter of National Minorities in the Republic of Croatia and of Art. 12 of the Constitutional Act on the Rights of National Minorities, until the fulfilment of conditions set in Art. 8 of the Constitutional Act on the Rights of National Minorities.”

  61. 61.

    Article 8 ADA. Article 3(1) GEA sets a duty for state authorities, bodies of local and regional self-government units, legal persons vested with public authority, legal persons predominantly owned by the state and units of local and regional self-government to estimate and evaluate the effects of their legal acts, decisions or actions on the position of women and men in every phase of their planning, adoption and implementation in order to achieve actual equality between women and men.

  62. 62.

    Grgić et al. (2009), p. 62.

  63. 63.

    Potočnjak and Grgić say that the provision should nevertheless be considered as an open-ended one by interpreting antidiscrimination statutory law in accordance with the guarantee of non-discrimination in Art. 14(1) of the Constitution. See Potočnjak and Grgić (2011), p. 19.

  64. 64.

    Article 9(1) ADA. With regard to definition and different forms of discrimination, see Mišćenić (2015), p. 114.

  65. 65.

    Provisions on positive measures are also regulated in Chapter III, i.e. Articles 9–12 GEA. The last amendment of Article 9(2) ADA concerned the adjustment of insurance services exception to C-236/09, Test Achats [2011] ECR I-00773.

  66. 66.

    This is also confirmed by the ECJ/CJEU practice, which raised the principle of non-discrimination particularly in cases of discrimination on the grounds of age and sex to the level of a general constitutional principle and recognized its fundamental rights value. See C-152/73, Sotgiu [1974] ECR I-00153, C-149/77; Defrenne III [1978] ECR I-01365; C-442/00, Caballero [2002] ECR I-11915; C-25/02, Katharina Rinke v. Ärztekammer Hamburg [2002] ECR I-08349; C-144/04, Mangold [2005] ECR I-09981; C-555/07, Seda Kücükdeveci [2010] ECR I-00365 etc.

  67. 67.

    According to Article 9(2) ADA, placing in a less favourable position shall not be deemed to be discrimination in the following cases: “1. when such a conduct is set forth by law with the aim to preserve health, public security, maintain public order and peace, prevent criminal acts, and to protect rights and freedoms of other people and when the means used in democratic society are appropriate and necessary for achievement of the aimed goal, under condition that such conduct does not lead to direct or indirect discrimination on the ground of race or ethnic origin, colour, religion, gender, national and social origin, sexual orientation and disability; […]. 3. pursuing measures of social politic that privilege persons or households in difficult property or social situation under condition that these measures do not lead to direct or indirect discrimination on the ground of gender, sexual orientation, race, colour, ethnic origin, religion and disability.[…].”

  68. 68.

    Report of the Ombudsman from 2014. Available at: http://www.ombudsman.hr/index.php/en/documents-3/ombudsman-s-reports/finish/15-ombudsman-s-reports/648-summary-annual-report-for-2014.

  69. 69.

    See cases on discrimination of Serbs regarding the takeover of property situated in occupied territories and belonging to persons who had left Croatia after 17 October 1990: Saratlić v. Croatia, App. No. 35670/03, ECHR (2006); Radanović v. Croatia, App. No. 9056/02, ECHR (2006); Grlica v. Croatia, App. No. 15579/04, ECHR (2006); Vučak&Vučak v. Croatia, App. No. 889/06, ECHR (2008); Kunić v. Croatia, App. No. 22344/02, ECHR (2007); Decision of the Constitutional Court U-III/1451/2004 of 9 December 2004. See also the Judgement in the case Oršuš and Others v. Croatia (2011) 52 ECHR 7 regarding racial discrimination and violation of the right to education of schoolchildren separated in Roma-only classes.

  70. 70.

    See supra, Answer to Questions Nos. 4 and 5.

  71. 71.

    For a detailed analysis of discrimination on the grounds of age, disability, sexual orientation, gender, race and ethnic origin, nationality, political and religious opinion and other grounds, consult Mišćenić (2014), pp. 93 et seq.

  72. 72.

    The court practice prior to adoption of the ADA dealt with cases of discrimination based on the grounds mentioned above. For example: Judgements of the Supreme Court, Revr-459/07 of 25 September 2007 (age), Ur 4/07 of 17 May 2007 (age), Revr-90/06-2 of 4 July 2006 (age); County Court in Varaždin, Gž-473/2003 of 15 April 2003 (age and gender); Decision of the Constitutional Court U-III-611-I-1999 of 16 November 2000 (disability); and Decisions of the Constitutional Court U-I-402/2003 and U-I-2812/2007 of 30 April 2008 (national origin).

  73. 73.

    According to Article 3 of the Constitution, “freedom, equal rights, national and gender equality, peace-making, social justice, respect for human rights, inviolability of ownership, conservation of nature and the environment, the rule of law and a democratic multiparty system are the highest values of the constitutional order of the Republic of Croatia and the ground for interpretation of the Constitution.” Article 14(1) of the Constitution guarantees that “all persons in the Republic of Croatia (shall) enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other conviction, national or social origin, property, birth, education, social status or other characteristics,” and according to its para. 2, “all persons shall be equal before the law.” References to the right to equality can be found in numerous other constitutional provisions (Articles 15, 26, 44, 49, 55 etc.).

  74. 74.

    Article 141 Constitution.

  75. 75.

    For example, the COA provisions on legal capacity (Article 17(1)), personality rights (Article 19), nullity of contracts (Article 322(1)), performance (Article 270–271), and condition (Article 298(1)), the Family Act provision on regulation of family relationships (Article 2); Inheritance Act provisions on inadmissible or unmoral conditions (Article 47(3)) or mandates (Article 48(2)); provisions of the Act on Ownership and Other Real Rights on acquiring ownership rights over real estate (Article 358a); or the LA provisions on direct and indirect discrimination (Article 7(4)); prohibition of unequal treatment of pregnant women (Article 67); equal pay to women and men for equal work or work of equal value (Article 83); and protection of workers dignity (Article 130).

  76. 76.

    Articles 118(3) and 119(1) Constitution; Article 24(1) Courts Act.

  77. 77.

    Article 5(2) Constitution. According to Article 20 of the Constitution, anyone violating the provisions of the Constitution on human rights and fundamental freedoms is personally responsible and may not be justified by a higher order.

  78. 78.

    See the Decisions of the Constitutional Court: No. U-III/696/1996 of 11 October 2000, stating that “equality before the law within the meaning of that constitutional provision (Article 14(2) Constitution) assumes, among others, the equal legal position of participants to legal relationship deriving from a certain legal transaction”; Nos. U-II-318/2003, U-II-643/2003 of 9 April 2003, according to which courts shall decide on conflicts of collective agreement with the Constitution, mandatory provisions and morals of society by applying the COA provisions on nullity of contracts; No. U-III-2029/01 of 28 March 2002, saying the “… constitutional guarantee of equality from Article 14 Constitution would be violated if it would be established that the party in the procedure preceding the challenged decision was not in equal position to other parties in the same legal situation […].”

  79. 79.

    See the Judgement of the County Court in Zagreb 15 Pnz-6/10-27 of 24 March 2011; the Judgement of the Supreme Court Gž-12/11-2 of 18 April 2012; the Judgement of the County Court in Zagreb Pnz-7/10 of 2 May 2011; the Judgement of the County Court in Zagreb Pnz-8/10 of 28 July 2011; the Judgement of the Supreme Court Gž-25/11-2 of 28 February 2012; the Judgement of the Supreme Court Gž-41/11-2 of 28 February 2012; the Judgement of the Municipal Court in Varaždin P-3153/10-89 of 12 July 2012; the Judgement of the County Court in Varaždin Gž-5048/12-2 of 9 July 2013 analysed in Mišćenić (2015), pp. 128 et seq.

  80. 80.

    According to Dika (2011), p. 86, the concept of “probability” is not defined in the Croatian civil law procedure and it does not require that a claimant prove the facts with a level of certainty, which he or she would be required to do under the provisions of civil law procedure. By interpreting these provisions in accordance with Article 8 of the Directive 2000/43/EC and Article 10 of the Directive 2000/78/EC, Dika concludes that the concept of “probability” should be interpreted as prima facie evidence, a legal standard not applied in the Croatian law and practice.

  81. 81.

    See examples of judgements in the area of labour and employment relations prior to ADA adoption: In Judgement Revr-617/2006-2 of 11 January 2007, the Supreme Court held that the burden of proof that there was no discrimination was, according to Article 6 LA, on the respondent. In another Judgement Revr-256/07 of 6 June 2007, the Supreme Court held that the worker must prove the discriminatory behaviour of the employer towards him. In Judgement Gž 286/2007-2 of 7 May 2007 the County Court in Varaždin said that the respondent (employer) does not need to prove that the worker’s dismissal is not a consequence of discrimination if the claimant has not mentioned any facts that would sour doubt that discriminatory behaviour occurred.

  82. 82.

    The provisions of the Execution Act (OG Nos. 112/12, 25/13 and 93/14) apply accordingly, while Article 19(2)(2) ADA requires for a measure to be necessary for the elimination of the danger of irreparable damage, of a particularly serious violation of the right to equal treatment, or because of the prevention of violence.

  83. 83.

    For example, in case Gž-25/11-2 of 28 February 2012, the Supreme Court overruled the first instance judgment of County Court in Zagreb Pnz-7/10 of 2 May 2011 that dismissed the antidiscrimination claims because the respondent was not speaking in his own name, but in the name of Croatian Football Federation and is consequently not passively legitimated in the dispute, and because the claimants did not prove the harmful consequences of the respondent’s behaviour. Besides establishing the discrimination and prohibiting the future discriminatory behaviour of the respondent (in line with cases C-54/07, Feryn [2008] ECR I-05187 and C-81/12, Asociaţia Accept [2013] EU:C:2013:275), the Supreme Court explained that public statements coming from the president of the Croatian Football Federation should also be looked at from the perspective of a person who is in the world of football, and on sports relations regarded as a person of competence and authority who unquestionably has an influence in the area of sport, in particular of football in Croatia.

  84. 84.

    Pursuant to Article 36(1)(2) Accession Treaty, the Commission shall monitor, in particular, the commitments undertaken by Croatia in the area of the judiciary and fundamental rights (Annex VII), including the continued development of track records on judicial reform and efficiency.

  85. 85.

    Judgement of the County Court in Varaždin Gž-3123/11-2 of 25 October 2011: “due to violation of personality rights on honour, dignity and reputation and discriminatory behaviour of defendant, and due to violation of claimant’s fundamental human rights, which are protected to every person”.

  86. 86.

    Judgement of the County Court in Varaždin Gž-3123/11-2 of 25 October 2011: “defendants behaviour violated their dignity, reputation and honour, which are values protected also by European Convention for the Protection of Human Rights and to be equally valuated for every person”.

  87. 87.

    Judgement of the Supreme Court Kzz-11/11-3 of 6 September 2011 on the relation between LA, CC and ADA provisions in case of harassment and sexual harassment of an employee at their working place.

  88. 88.

    Judgement in the collective antidiscrimination proceeding of the County Court in Zagreb 15 Pnz-6/10-27 of 24 March 2011, confirmed by the Judgement of the Supreme Court Gž-12/11-2 of 18 April 2012. The Judgement is based on the same arguments of the County Court in Zagreb Pnz-8/10 of 28 July 2011, which was dismissed and corrected by the Judgement of the Supreme Court Gž-41/11-2 of 28 February 2012.

  89. 89.

    See the Judgements of the Municipal Court in Varaždin P-3153/10-89 of 12 July 2012 and County Court in Varaždin Gž-5048/12-2 of 9 July 2013.

  90. 90.

    Judgements of the County Court in Zagreb 15 Pnz-6/10-27 of 24 March 2011 and of the Supreme Court Gž-12/11-2 of 18 April 2012; Judgements of the County Court in Zagreb Pnz-7/10 of 2 May 2011 and Pnz-8/10 of 28 July 2011.

  91. 91.

    Judgement of the County Court in Zagreb 15 Pnz-6/10-27 of 24 March 2011.

  92. 92.

    Judgement of the County Court in Zagreb 15 Pnz-6/10-27 of 24 March 2011.

  93. 93.

    In opposition to Articles 1–2 ADA and Arts. 6–7 GEA containing definitions of discrimination and CJEU/ECJ case law, e.g. in C-54/07, Feryn [2008] ECR I-05187 or in C-81/12, Asociaţia Accept [2013] EU:C:2013:275.

  94. 94.

    Articles 145–146 Constitution.

  95. 95.

    Judgements of the Supreme Court of the Republic of Croatia Gž-25/11-2 and Gž-41/11-2 of 28 February 2012.

  96. 96.

    See supra, Answer to Question No. 1.

  97. 97.

    See supra, Answer to Question No. 13.

  98. 98.

    Bodiroga-Vukobrat and Martinović (2013), p. 11; Vasiljević (2015), p. 68.

  99. 99.

    For example, Judgement of the County Court in Zagreb Pnz-7/10 of 2 May 2011, overruled by Judgement of the Supreme Court Gž-25/11-2; Judgement of the County Court in Zagreb Pnz-8/10 of 28 July 2011, overruled by Judgement of the Supreme Court Gž-41/11-2 of 28 February 2012; Judgement of the County Court in Zagreb Pnz-2/13 of 5 June 2013, overruled by Judgement of the Supreme Court Gž-21/13-2 of 10 September 2013.

  100. 100.

    According to the Ombudsman’s Annual Report of 2014, in 2014 the Ombudsman worked on 3892 cases, wherein the number of complaints was 40% higher compared to the two previous years. Available at: http://www.ombudsman.hr/index.php/en/.

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Authors and Affiliations

  1. University of Rijeka, Faculty of Law, Rijeka, Croatia

    Emilia Mišćenić

  2. Office of the Ombudswoman, Antidiscrimination Department, Zagreb, Croatia

    Dijana Kesonja

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  1. Emilia Mišćenić
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  2. Berkeley Law, Berkeley, California, USA

    David B. Oppenheimer

  3. Berkeley Law, Berkeley, California, USA

    Cady Sartorius

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Mišćenić, E., Kesonja, D. (2018). Croatia. In: Mercat-Bruns, M., Oppenheimer, D., Sartorius, C. (eds) Comparative Perspectives on the Enforcement and Effectiveness of Antidiscrimination Law. Ius Comparatum - Global Studies in Comparative Law, vol 28. Springer, Cham. https://doi.org/10.1007/978-3-319-90068-1_8

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