Unused Potential - The Role and Importance of Non-Governmental Organizations in Protection against Discrimination in Bosnia and Herzegovina
Unused Potential - The Role and Importance of Non-Governmental Organizations in Protection against Discrimination in Bosnia and Herzegovina

Author(s): Boris Topić
Contributor(s): Edin Hodžić (Editor), Mirela Rožajac-Zulčić (Editor), Kanita Halilović (Translator)
Subject(s): Civil Law, Human Rights and Humanitarian Law, Civil Society, Politics and society
Published by: Analitika – Centar za društvena istraživanja, sva prava pridržana
Keywords: BiH; discrimination; protection; NGO; civil society; role; importance;
Summary/Abstract: With the passing of the Law on the Prohibition of Discrimination (hereinafter referred to as: LPD) in July 2009, the existing anti-discrimination framework in Bosnia and Herzegovina was supplemented. Thus Bosnia and Herzegovina joined a broad circle of countries trying to ensure the elimination of discrimination by adopting comprehensive anti-discrimination legislation that provides legal protection against discrimination committed both by the state and its bodies and by private persons. This important law, among other things, recognizes the significant role that non-governmental organizations are able to play in the field of combating discrimination by according them, among other things, certain procedural roles in the judicial proceeding for protection against discrimination. In the international and comparative field, one of the most important activities of non-governmental organizations that stands out in the area of combating discrimination is their role in proceedings for protection against discrimination. The reason why organizations of civil society are allowed to participate in proceedings for protection against discrimination basically lies in the fact that suppression of discrimination is a public interest activity and that any well-regulated anti-discrimination system should contain different modalities of participation of non-governmental organizations in proceedings for protection against discrimination. Therefore, we may characterize NGO activities in proceedings for protection against discrimination as a specific form of public interest litigation. Special significance to NGOs in this field, at least in European Union countries, was accorded by directives in the discrimination field, which require, for the purpose of ensuring efficient protection against discrimination, that the states in their judicial systems allow non-governmental organizations to act on behalf of victims of discrimination or in support of these individuals in proceedings for protection against discrimination. These procedural roles of non-governmental organizations are regulated differently in different legal systems. Yet, possible forms of activities of nongovernmental organizations on behalf of the victim that we might single out are filing a lawsuit in the name and on behalf of the victim – i.e. legal representation, the option for a non-governmental organization to appear as co-plaintiff together with the victim or the option to appear as an independent plaintiff with the consent of the victim. In addition, a specific form of action on behalf of victims of discrimination that stands out are activities of non-governmental organizations on filing a collective or group lawsuit. A very important form of support to victims of discrimination in anti-discrimination proceedings is certainly the participation of organizations of civil society as interveners in proceedings on the side of the victim or as friends of the court (amici curiae). Finally, a key contribution of non-governmental organizations in the field of combating discrimination is undoubtedly their role in so-called strategic lawsuits instigated to provide support to the implementation of anti-discrimination laws or to clarify various concepts contained in anti-discrimination legislation. Bearing in mind the above, this report attempts to analyze the existing legislative solutions in light of comparative experience and to point out the obstacles standing in the way of more active engagement of non-governmental organizations in judicial proceedings for protection against discrimination. In addition, the report attempts to offer specific solutions that will additionally motivate nongovernmental organizations to actively use the procedural roles accorded to them by the LPD, in the best interest of victims of discrimination. The report is mainly based on secondary, comparative research focusing on the role, activities and best practice of organizations of civil society in judicial proceedings for protection against discrimination. In addition, relevant legislative solutions related to the procedural role of non-governmental organizations in judicial proceedings for protection against discrimination were analyzed, as well as the first court judgments in discrimination cases in Bosnia and Herzegovina. Analysis of adopted legislative solutions in Bosnia and Herzegovina was performed in light of comparative experiences, primarily experiences of neighboring countries, considering that they share with Bosnia and Herzegovina a similar legal tradition and similar problems, as well as countries of the European Union which Bosnia and Herzegovina is trying to join. The analysis also encompassed other cases when needed to provide answers to specific questions. Finally, available sources on the current situation in the non-governmental sector in Bosnia and Herzegovina were also consulted, with particular focus on organizations working on protection of human rights. In the first section, the report analyzes solutions prescribed by the Law on the Prohibition of Discrimination of Bosnia and Herzegovina pertaining to the procedural role of non-governmental organizations in anti-discrimination proceedings. The second section focuses on obstacles that prevent organizations of civil society from taking a more active part in judicial proceedings for protection against discrimination. Through an overview of comparative experiences, effort is made to point to the most important requirements and criteria for efficient use of the option of participation of non-governmental organizations in antidiscrimination proceedings in Bosnia and Herzegovina. Finally, the concluding observations sum up the observations from the analysis and formulate specific recommendations related to legislative and practical solutions in this field in Bosnia and Herzegovina.

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