Policy

Brief 5
UNUSED POTENTIAL: THE ROLE AND IMPORTANCE
OF NON-GOVERNMENTAL ORGANIZATIONS IN
PROTECTION AGAINST DISCRIMINATION IN BOSNIA
AND HERZEGOVINA
*
January 2013.
By: Boris Topi
1. INTRODUCTION
In the internatonal and comparatve eld, one
of the most important actvites of non-gov-
ernmental organizatons (NGOs) that stands
out in the area of combatng discriminaton is
their role in proceedings for protecton against
discriminaton.
1
Special signicance to NGOs in
this eld in the European Union countries was
accorded by Directves in the discriminaton
eld
2
, which require, for the purpose of ensu-
ring e cient protecton against discriminaton,
that the states in their judicial systems allow
non-governmental organizatons to act on be-
half of victms of discriminaton or in support
of these individuals in proceedings for protec-
ton against discriminaton. The Law on the
Prohibiton of Discriminaton BiH (LPDBiH)
3

accords non-governmental organisatons two
signicant procedural roles, clearly taking into
account the provisions of the said Directves.
In line with these procedural roles, NGOs are
gi ven an oppor tunity to provide support to
victms in proceedings for protecton against
discriminaton by using the well-known mecha-
nism of intervener or, for the purpose of ab-
stract protecton of victms of discriminaton, to
act independently through collectve lawsuits.
The LPDBiH aords a statutory right to asso-
ciatons, bodies, insttutons or other organi-
zatons that have a justed interest in l-
ing collectve suits.
4
Collectve lawsuit against
* This Policy Brief is based on the Report Unused Potental: The Role and Importance of Non-governmental Organisatons in
Protecton against Discriminaton in Bosnia and Herzegovina, by Boris Topic, published in 2012 by Analitka Center for Social
Research. The Report is available in PDF version, on: htp://www.analitka.ba/les/B.Topic_Unused%20Potental%2011feb2013.
pdf. Text translated by Antonela Glavini. The preparaton of the Report and the Policy Brief was supported by the Open Society
Fund Bosnia & Herzegovina.
1
Ana Horvat, Novi standardi hrvatskoga i europskoga antdiskriminacijskog zakonodavstva [New Standards in Croatan and
European Ant-discriminaton Legislaton], Zbornik Pravnog fakulteta u Zagrebu [Compendium of the Law School of Zagreb], No.
58, issue 6 (Zagreb: Faculty of Law of the University of Zagreb, 2008), p. 1487.
2
Racial Equality Directve Council Directve 2000/43/EC of 29 June 2000 implementng the principle of equal treatment bet ween
persons irrespectve of racial or ethnic origin, O cial Journal of the European Union, L 180/2000, Artcle 7; and Employment Equality
Framework Directve Council Directve 2000/78/EC of 27 November 2000 establishing a general fra mework for equal treatment in
employment and occupaton, O cial Journal of the European Union, L 303/2000, Artcle 9.
3
Zakon o zabrani diskriminacije Bosne i Hercegovine [The Law on the Prohibiton of Discriminaton BiH], O cial Ga ze te of
Bosnia and Herzegovina, 59/09.
4
Ibid, Artcle 17.
The Law on the Prohibiton of Discriminaton BiH, inter alia, allows non-governmental
organisatons (NGOs) in BiH to provide support to victms of discriminaton by
partcipatng in judicial proceedings on behalf of plaint and, for the purpose of
abstract protecton of victms of discriminaton, by ling a collectve lawsuit. Although
the antdiscriminaton law has already been in force for three years, the number of
proceedings instgated under this Law is very low, and the partcipaton of NGOs in
its implementaton is practcally negligible. The obstacles preventng NGOs in engaging
more actvely in ant-discriminaton proceedings are partly the result of the legal
provisions themselves, but are primarily the consequence of certain practcal problems,
such as: the lack of stmulatng environment for the partcipaton of NGOs in judicial
proceedings, the lack of nancial and human resources and the technical problem of
the lack of records on instgated proceedings. K
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ANALITIKA
Center for Social Research
UNUSED POTENTIAL
2
alleged discriminator is led by an organisaton
which is not the victm of discriminaton itself
provided it makes it plausible that the plain-
ts conduct violated the right of a number of
persons predominantly belonging to the group
whose protecton is sought by the lawsuit.
5

Introducton of the mechanism of collectve
lawsuit for protecton against discriminaton
is a novelty in the legal system of Bosnia and
Herzegovina, which may serve as an excellent
tool in the hands of non-governmental human
rights organizatons in combatng insttutonal
or structural discriminaton in a variety of elds.
As an important argument in favour of this as-
serton, it can be pointed out that the collec-
tve lawsuit as an abstract form of protecton
does not depend on the existence of a specic
victm, allowing the organisaton that les the
lawsuit to focus on arguments atacking the
discriminatory consequences that result either
from the law itself, from its implementaton,
or simply from the practce and the conduct.
These characteristcs of collectve lawsuits make
it a partcularly suitable means for conductng
the so-called strategic litgaton a litgaton
whose goal is to, through judicial acton, lead to
social changes, contribute to the interpretaton
of laws or simply to raise the public awareness
regarding dierent forms of discriminaton.
With the aim of strengthening the procedural
positon of the plaint, the LPDBiH aords the
right to non-governmental organisatons
6
to in-
tervene in the proceedings for the plaint. This
right is given to the organisatons whose scope
of actvites includes protecton from discrimi-
naton, thus, in this case, they appear as a kind
of public interest interveners.
7
In order to
join the instgated litgaton, non-governmental
organisaton must obtain the plaints con-
sent and they must prove that their actvites
provide the protecton from discriminaton of
persons whose rights are being decided upon
in the proceedings. Non-governmental organi-
saton proves that it meets this second require-
ment by submit ng excerpts from their con-
sttuent or organisatonal documents. Through
their partcipaton in the role of plaints inter-
vener, NGOs may take procedural measures for
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1. The legal mechanism of collectve lawsuit should be improved by eliminatng the need to prove
the existence of a justed interest for ling a lawsuit, and the likelihood that the actons of the
plaint violated the rights of a number of people be a subject of the evidentary procedure and
not, as the current provision sets forth, a subject of assessment of admissibility of the lawsuit.
2. Plaints in the ant-discriminaton proceedings should be exempt from paying the costs of the
proceedings in advance.
3. Optons for the partcipaton of non-governmental insttutons and other relevant actors in
ant-discriminaton proceedings should be expanded by introducing the mechanism of friend of
the court - amicus curiae.
4. Non-governmental organizatons as such, (and not just individuals within them) should be
given a procedural opportunity to appear as representatves of victms of discriminaton in
judicial proceedings, but also to appear on their behalf even in individual cases, subject to the
consent of the victm of discriminaton.
5. The governmental sector in BiH should ensure minimum pre-requisites and provide basic
elements of a stmulatng environment for a more actve involvement of NGOs in ant-
discriminaton judicial proceedings.
6. Relevant insttutons in BiH should establish easily accessible records on judicial proceedings
instgated under the LPDBiH.
7. Non-governmental organisatons should intensify their actvites on strengthening internal
capacites for the partcipaton in judicial proceedings for protecton against discriminaton, as
well as on establishing substantve partnerships with other non-governmental organisatons and
with the Insttuton of Human Rights Ombudsman of BiH, in order to properly and e ciently use
the procedural roles aorded to them by the LPDBiH.
5
Ibid.
6
The LPDBiH uses the following wording: a body, organizaton, insttuton, associaton or other person whose scope of act-
vi tes includes protecton from discriminaton of the person or group of persons whose rights are being decided upon in the
proceedings.
7
See Alan Uzelac, Postupak pred sudom [The Proceedings before Court], in Vodi uz Zakon o suzbijanju diskriminacije [Guide
Accompanying the Law on the Prohibiton of Discriminaton], ed. Tena imonovi Einwalter (Zagreb: O ce for Human Rights of the
Government of the Republic of Croata, 2009), p. 100; and Goran Nezirovi, Postupak za zattu od diskriminacije [The Proceedings
for Protecton against Discriminaton], in Materijal pripremljen za obuku sudija i tuilaca o Zakonu o zabrani diskriminacije, [Material
prepared for judicial and prosecutorial training on the Law on the Prohibiton of Discriminaton], p. 22.
3
POLICY BRIEF 5
Boris Topi graduated
from the Law School of
the University of Banja
Luka and received his
Masters Degree in
Internatonal Human
Rights Law from the
University of Oxford,
United Kingdom.
He has a wealth of
experience in the eld
of human rights gained
through his work
in the Insttuton of
Ombudsman for Human
Rights of Bosnia and
Herzegovina, Human
Rights Department of
the OSCE Mission to BiH
and the European Court
of Human Rights.
the plaint thus contributng to the success of
the instgated proceedings.
However, despite the said procedural optons,
only one NGO (Vaa prava) has undertaken
ju dicial proceedings for protecton against dis-
criminaton under the LPDBiH, which provided
the inital jurisprudence.
8
In an eort to explain
the low level of engagement of the non-gover-
nmental sector in judicial proceedings for protec-
ton against discriminaton, this Brief addresses
the key legal and practcal obstacles preventng
NGOs from partcipatng more actvely in such
form of combat ng discriminaton.
2. LEGISLATIVE SOLUTIONS: OBSTACLES
AND POTENTIAL IMPROVEMENTS
2.1. Collectve Lawsuit
The obligaton of the plaint to prove the exis-
tence of a justed interest for ling the collec-
tve lawsuit set forth in the LPDBiH somewhat
diminishes the procedural strength of the collec-
tve lawsuit. In additon, for the co lle ctve law-
suit to be admissible, the plaint must at least
make it plausible that the defendants conduct
was discriminatve against a number of persons
predominantly belonging to a certain group.
The Croatan ant-discrimi naton law deals with
the issue in the same manner,
9
while the ant-
discriminaton law in Serbia adopted a dier-
ent approach. Namely, according to the Law on
Gender Equality of the Republic of Serbia
10
non-
governmental organisat ons are granted a stat-
utory right in case of discriminaton of a num-
ber of persons. The said Law, however, does not
specically oblige them to prove the existence
of a legal interest in ling a lawsuit, nor are they
obliged to make it plausible that at the tme of
ling the lawsuit the defendants conduct was
discriminatve against a number of people.
11

Also, the Law on Prohibiton of Discriminaton
of Republic of Serbia
12
does not prescribe either
that the organisatons whose scope of actvi-
tes includes protecton from discriminaton
prove the existence of legal interest for ling a
lawsuit. The introducton of a similar provision
in Bosnia and Herzegovina would clearly em-
phasize that the establishment of a plausible
discriminaton against a number of persons is
subject of the evidentary procedure, and not,
as the current provision prescribes, a subject of
assessment of admissibility of the lawsuit. With
the eliminaton of the vague and arbitrary crite-
rion of justed interest, the legal standing of
non-governmental organizatons in this context
would be both unambiguous and more broadly
and explicitly dened.
The LPDBiH does not impose restrictons as to
the types of claims which non-governmental
organisatons may make in collectve lawsuits.
However, such an open legislatve soluton
was not adopted in the comprehensive ant-
discriminaton laws in the neighbouring coun-
tries. Bearing in mind that collectve lawsuit is a
new mechanism in our law, the specicaton of
claims that may be made in collectve lawsuits
would be a welcome amendment to the Law.
This would clearly show that non-governmental
organizatons as persons with a legal standing
have a broad range of claims at their disposal
and it would remove dilemmas related to the
queston of whether the legal standing of non-
governmental organizatons to le a collectve
lawsuit includes making a claim for compensa-
ton of damages.
2.2. NGOs as a Third Party in a
Proceedings
In terms of regulatng the partcipaton of third
partes in proceedings, the LPDBiH, using the
Croatan legislatve soluton as a mo del, al-
lows NGOs to partcipate in proceedings only
as an interveneron behalf of the plaint. In
that regard, it is of interest that the legislator
did not opt for the use of the mechanism of
amici curiae friend of the court (which alre-
ady exists in proceedings before the Consttu-
tonal Court of BiH
13
) as a form of providing
8
At the tme of writng this Policy Brief, courts in Bosnia and Herzegovina had only passed three judgments pursuant to the
LPDBiH: 1) Mostar Municipal Court, Judgment no. P 58 0 P 056658 09 P of 6 July 2010 (E. B. case, related to discriminaton in
educaton on grounds of disability); 2) Livno Municipal Court, Judgment no. 68 0 P 017561 of 7 October 2011 (Katovic case,
related to discriminaton on grounds of religion); and 3) Mostar Municipal Court, Judgment no. 58 PS 08563 11 Ps of 27 April
2012 (the two schools under one roof case).
9
Zakon o suzbijanju diskriminacije Republike Hrvatske [Law on the Suppression of Discriminaton of the Republic of Croata],
O cial Gazete of Republic of Croata 85/08, Artcle 24.
10
Zakon o ravnopravnost polova Republike Srbije [Law on Gender Equality of the Republic of Serbia], O cial Gazete of the
Republic of Serbia 104/2009, Artcle 43.
11
Marijana Pajvani, Nevena Petrui and Senad Jaarevi, Komentar Zakona o ravnopravnost polova [Comments on the Law
on Gender Equality], (Belgrade: Center of Modern Skills, 2010), p. 110.
12
Zakon o zabrani diskriminacije Republike Srbije [Law on the Prohibiton of Discriminaton of the Republic of Serbia],
O cial Gazete of the Republic of Serbia 22/09, Artcle 46.
13
Consttutonal Court of Bosnia and Herzegovina, Pravila Ustavnog suda Bosne i Hercegovine [the Rules of the Consttutonal
Court of Bosnia and Herzegovina], (Sarajevo: Consttutonal Court of Bosnia and Herzegovina, 2005), Artcle 47.
UNUSED POTENTIAL
4
support to victms of discriminaton. The term
amicus curiae (friend of the court) denotes a
person whose partcipaton in proceedings is
restricted to providing assi stance to the court
regarding factual and legal issues. The intro-
ducton of this mechanism could make it easi-
er for many organizatons to join the proceed-
ings, because they would thus maintain the
percepton of neutrality which, in turn, might
lend more force to their arguments. This way,
non-governmental orga nizatons would then
be able to focus on the legal and theoretcal
issues without being burdened by relatons
between the partes in the proceedings. At the
same tme, such interventon would provide
the court with an overview of internatonal
and comparatve standards, as well as juris-
prudence relevant to the case at hand
14
, which
is of partcular signicance in the light of the
recentness of the adopton of the comprehen-
sive ant-discriminaton framework in Bosnia
and Herzegovina and the important noveltes
it introduces.
The victms of discriminaton ofen decide
against seeking judicial protecton, both from
fear of additonal discriminaton and because
of the uncertainty with regards to the out-
come of the proceedings. This is why any well-
regulated ant-discriminaton system allows
non-governmental organisatons to represent
victms of discriminaton in judicial proceed-
ings or to act on behalf of the victm in a dier-
ent capacity. However, LPDBiH has not intro-
duced this opton.
The analysis of legislaton from other coun-
tries reveals that NGOs as such are mainly au-
thorised to act on behalf of victms of discrimi-
naton in judicial proceedings. For example,
according to the soluton adopted in Monte-
negro, NGOs dealing with the protecton of
human rights may le a lawsuit for protecton
against discriminaton on behalf of a discrimi-
nated person subject to the persons prior
consent.
15
In Serbia, according to the relevant
provisions of the LPD, non-governmental or-
ganizatons dealing with human rights protec-
ton, subject to prior writen consent by a dis-
criminated person, may le a lawsuit on their
own behalf.
16
The said solutons enable ling
lawsuits against discriminaton even in those
cases when the victm is reluctant to appear
in the proceedings as a party, thus facilitatng
the implementaton of laws on prohibiton of
discriminaton. Therefore, the lack of a similar
soluton in the LPDBiH may be deemed as a
signicant oversight of the legislator.
3. PRACTICAL OBSTACLES
3.1. Informaton on Cases, Human and
Financial Resources
The involvement of non-governmental orga-
nisatons in public interest litgaton, such as
litgaton for the protecton against discri mi-
naton, brings many challenges, which are not
typical only for transitonal societes, such as
Bosnia and Herzegovina. However, these cha-
lle nges in the BiH context are in many ways
greater than in other countries with a more
developed civil society.
It is primarily because of the long-tme per-
cepton created during the single-party system
according to which the public interest equals
the state interest
17
that the civil society itself is
stll get ng used to the fact that it represents
a lever in safe-guarding public interest through
the so-called judicial actvism.
18
Another factor
preventng NGOs in engaging more actvely in
legal proceedings for protecton against dis-
criminaton is the limited human and nancial
resources in the diverse non-governmental
sector in Bosnia and Herzegovina. Namely, the
percepton that legal actvism is an actvity for
which signicant nancial means are needed
is widespread. It is true that judicial protecton
in ant-discriminaton cases may represent an
actvity which demands signicant resources
and a long-term and intense engagement of
human resources, especially in the cases of
structural discriminaton, whose proving, as a
rule, implies gathering and processing statst-
cal data, undertaking complex procedures of
documentng facts or instgatng several similar
civil proceedings. In additon, the procedural
14
Margarita Ilieva, Uloga NVO-a u primeni Zakona protv diskriminacije: Iskustvo iz Bugarske [The Role of NGOs in the Imple-
men taton of Ant-discriminaton Law: Experience from Bulgaria]. In Sprovoenje Zakona protv diskriminacije: izazov za Kosovo
[Implementaton of Ant-discriminaton Law: A Challenge for Kosovo], (Pritna: OSCE Mission in Kosovo, 2007), page 16.
15
Zakon o zabrani diskriminacije Republike Crne Gore [The Law on Prohibiton of Discriminaton of the Republic of
Montenegro], O cial Gazete of Montenegro 46/2019, Artcle 30.
16
Every type of claims that can be made by the discriminated person him/herself can also be made in this lawsuit, apart from
damages claim. The Law on Prohibiton of Discriminaton of Republic of Serbia, Artcle 46.
17
See James A. Goldston Public Interest Litgaton in Central and Eastern Europe: Roots, Prospects and Challenges, Human
Rights Quarterly 28 (2006), p. 492.
18
Ibid. and Goran eravi, Analiza insttucionalne suradnje izmedju vladinog i nevladinog sektora u BiH [Analysis of Insttutonal
Cooperaton between the Governmental and Non-governmental Sectors in BiH] (Sarajevo: Kronauer Consultng, 2008), p. 45-
46.
5
POLICY BRIEF 5
rule according to which each party is obliged
to pay its expenses in advance,
19
such as court
fees, the cost of expert witnesses or the cost
of witnesses do not represent a partcularly
stmulatng factor in achieving a more signi-
cant legal actvism of NGOs in the eld of com-
bat ng discriminaton.
Finally, there are also technical obstacles that
are preventng NGOs from using the procedural
roles granted to them by the LPDBiH. Namely,
the lack of records on instgated proceedings
for protecton against discriminaton prevents
non-governmental organisatons to tmely ide-
n tfy all current civil proceedings in the eld of
discriminaton and to, based on all relevant fac-
tors, decide on their engagement in them.
3.2 Potental Solutons
The recogniton of the importance of proce-
dural roles of NGOs in public interest proceed-
ings, such as ant-discriminaton proceedings,
is no guarantee that NGOs will partcipate in
a signicant number of proceedings with the
aim of protectng public interest. In additon
to recogniton of their procedural positon,
additonal actvites should be undertaken, es-
pecially in transitonal societes, with the goal
of changing the percepton according to which
the protecton of public interest primarily be-
longs to the state structures.
One way of overcoming this percepton is the
partcipaton in the actvites related to creatng
a stmulatng environment for development of
civil society. Building the capacites of non-gov-
ernmental organizatons in order to increase
their engagement in public interest actvites,
such as partcipaton in ant-discriminaton
pro ceedings is one such actvity. For example,
in neighbouring Croata, a well-organized stru-
cture composed of three parts was established
with the goal of supportng e cient develop-
ment of civil society and strengthening its ca-
pacites: O ce for Cooperaton with NGOs,
Council for Development of Civil Society and
Natonal Foundaton for Civil Society. These
bodies, which comprise representatves of the
governmental and non-governmental sectors,
have undertaken numerous actvites aimed at
creatng an environment conducive to devel-
opment of civil society. By oering informaton
related to the allocaton of EU pre-accession
funds such as IPA, resources have been provid-
ed for funding actvites related to strengthen-
ing the role and capacites of non-governmen-
tal organizatons in the eld of antdiscrimina-
ton, including improvement of the process of
punishing discriminatory actons through judi-
cial proceedings.
20
Positve experience from the region suggests
that creatng a framework for insttutonal
co operaton between the governmental and
non-governmental sectors has the potental to
contribute to development of civil society and
thus to its improved engagement in public in-
terest actvites, including combatng discrimi-
naton. However, the general framework and
state insttutonalizaton of cooperaton and
support to non-governmental organizatons
may create a suitable environment, but that in
itself will not bring urgent and necessary mea-
sures for greater engagement of NGOs in com-
batng discriminaton. Therefore, establishing
a separate foundaton modelled on Croatas
Natonal Foundaton for Civil Society may play
an important role in providing nancial sup-
port to non-governmental organizatons that
seek to become involved in actvites aimed at
preventng discriminaton through ju dicial pro-
ceedings. Cooperaton between d i e rent non-
governmental organisatons stands out as one
of the ways for overcoming limi ted human and
nancial resources. Thus, non-governmental
organizatons that mostly perform work related
to the law and provision of legal aid can appear
directly before courts, whereas organizatons
working on documentaton and collecton of
data can gather and process statstcal data or
carry out other research needed for successful
applicaton of procedural roles.
21
In this regard,
as positve examples in Bosnia and Herzegov-
ina, we might point out the actvites of the
Open Society Fund Bosnia and Herzegovina
22

19
Zakon o parnikom postupku Republike Srpske [Civil ProcedureCode of Republika Srpska], O cial Gazete of Republika
Srpska 58/03, 85/03, 74/05, 63/07, 49/09, Artcle 384, and Zakon o parninom postupku Federacije BiH [Civil Procedure Code
of the Federaton BiH], O cial Gazete of the Federaton of BiH 53/03, 73/05 and 119/06, Artcle 384.
20
For more informaton see: O ce for Cooperaton with NGOs of the Government of Republic of Croata, IPA 2008, htp://
www.uzuvrh.hr/stranica.aspx?pageID=156 (accessed on October 24, 2012).
21
In the Czech Republic, for example, non-governmental organizatons did precisely this in judicial proceedings for the protecton
of Roma rights. See European Roma Rights Center, Humanitarian Law Center and Minority Rights Center, Prirunik za advokate o
zastupanju Roma rtava diskriminacije [Handbook for Atorneyson Representaton of Roma Victms of Discriminaton], (Budapest:
European Roma Rights Center; Belgrade: Humanitarian Law Centar, Minority Rights Centre, 2005) p. 113. Also compare European
Roma Rights Centre, Interights and Migraton Policy Group, Strategic Litgaton of Race Discriminaton in Europe: from Principles to
Practce (Budapest: European Roma Rights Centre; London: Interights; Brussels: Migraton Policy Group, 2004), p. 62.
22
For more informaton, see Open Society Fund B&H Ant-Discriminaton Program htp://www.diskriminacija.ba/ (accessed
on October 23, 2012).
UNUSED POTENTIAL
6
(within which this Policy Brief and the Report it
is based on were produced), as well as the re-
cent establishment of a network of civil society
organisatons called the Equality Forum
23
.
In additon to that, the establishment of sys-
temic cooperaton between NGOs and legal
clinics created at law schools or student orga-
nizatons with a similar prole can serve as a
mechanism for overcoming the limited human
resources. This way, students are able to carry
out the necessary research, thus giving experi-
enced jurists from the organizaton more tme
to beter prepare the cases.
24
With regards to minimising nancial barriers,
some ant-discriminaton laws contain provi-
sions according to which the plaint in ant-dis-
criminaton cases is exempt from advance pay-
ment of the costs of proceedings and that these
costs must be paid for by the court.
25
It can be
assumed that the introducton of a similar pro-
vision to the laws in Bosnia and Herzegovina
would contribute to a beter implementaton of
the LPDBiH and to a more actve engagement of
non-governmental organisatons in proceedings
for the protecton against discriminaton, espe-
cially with regards to ling collectve lawsuits.
On the other hand, the procedural roles which
should not be too much of a nancial burden
for an organisaton should be recognised and
used. Namely, as opposed to the partcipaton
as a party in the proceedings, the partcipaton
in the role of an intervener should not incur
signicant nancial costs. In that case, non-gov-
ernmental organisatons may directly intervene
in proceedings using their current ndings and
skills, not needing to engage a lawyer or em-
ploy a person that meets the requirements for
the representaton.
4. ADDITIONAL MECHANISMS FOR
A MORE EFFECTIVE ENGAGEMENT
OF NGOs IN ANTI-DISCRIMINATION
PROCEEDINGS
For a successful ant-discriminaton lawsuit,
especially the one of strategic signicance,
it is especially important to develop a media
strategy and, in some cases, to create wider
co alitons. Development of appropriate me-
dia strategy lends greater signicance of the
inst gated lawsuit, and contributes to initatng
public debate and raising public awareness re-
garding discriminaton cases.
Another useful tactcs that organizatons of
civil society employ in strengthening their pro-
cedural role in ant-discriminaton proceedings
is cooperaton with ombudsman insttutons.
These insttutons are able to provide civil so-
ciety organizatons with necessary statstcal
data or they can, through their own actvites,
establish the relevant facts in an individual
case or become involved in proceedings as
interveners and thus lend support to the non-
governmental organizaton, whether it is ap-
pearing in the proceeding as the plaint or
actng as support to the victm of discrimina-
ton. Experience from other countries conrms
this. Reports from Lithuania, forexample, indi-
cate that the ombudsmans interventon in the
capacity of a third party had crucial impact on
the successful outcome in the rst case of ra-
cial discriminaton brought before Lithuanian
courts.
26
An important means for successful ant-dis-
criminaton proceedings is the so-called situ-
aton testng. In situaton testng, volunteers
are used as testers (voluntary testers of dis-
criminaton) in the eld, who, using the meth-
od of observaton, establish whether discrimi-
natory acts exist. One or more persons may
be found in the role of testers who person-
ally or directly engage in a situaton in order to
check the existence of discriminaton.
27
Situ-
aton testng is an important way for making
it plausible that discriminaton occurred
28
thus
shifing the burden of proof to the defendant.
Procedural rules in Bosnia and Herzegovina do
not contain a provision which prohibits the use
of situaton testng. However, the introducton
of explicit provisions on the permissibility of
the use of situaton testng in proceedings for
the protecton against discriminaton or grant-
ing legal standing to the voluntary tester of
23
For more informaton, see The Helsinki Commitee for Human Rights in Bosnia and Herzegovina, htp://www.bh-hchr.org/
(accessed October 23, 2012).
24
James A. Goldston Public Interest Litgaton in Central and Eastern Europe: Roots, Prospects and Challenges, Human Rights
Quarterly 28 (2006), p. 526.
25
For example, The Law on Gender Equality of the Republic of Serbia contains such a provision in Artcle 48.
26
See Jolanta Samuolyte, Applying situaton testng successfully to prove discriminaton based on ethnicity, in The Role of
NGOs and Trade Unions in Combatng Discriminaton, ed. Richard Polacek (Luxembourg: Publicatons O ce of the European
Union, 2009).
27
Vladimir V. Vodineli, Graansko pravna zatta od diskriminacije [Civil Law Protecton against Discriminaton], Heretcus:
asopis za preispitvanje prolost [Heretcus: Magazine for Re-examinaton of the Past] vol. VI, No. 3 - 4 (2008), p. 41.
28
European Roma Rights Center, Humanitarian Law Center and Minority Rights Center, Handbook for Atorneys on Representaton
of Roma Victms of Discriminaton, p. 47.
7
POLICY BRIEF 5
discriminaton to le a lawsuit for the protec-
ton against discriminaton, as provided for in
LPD of Republic of Serbia,
29
would represent a
good and useful soluton for Bosnia and Herze-
govina. This way the range of possible actvites
of NGOs in combatng discriminaton would
additonally be expanded and strengthened.
5. CONCLUSIONS AND
RECOMMENDATIONS
Amending the existng ant-discriminaton le-
gal framework in Bosnia and Herzegovina
30

with comprehensive ant-discriminaton pro-
visions certainly represents an encouraging
progress in the eld of protecton against dis-
criminaton. By recognising the importance
of their procedural role, non-governmental
orga nisatons are given a new opportunity to
make the prohibiton of discriminaton applied
more eectvely through judicial proceedings.
Certain shortcomings that can be found with
regards to the adopted laws on the status of
NGOs in ant-discriminaton proceedings do
not lessen their importance in any way. Stll,
certain improvements of the current legal pro-
visions and actvites on removing practcal ob-
stacles which prevent NGOs from a more ac-
tve engagement in judicial proceedings must
certainly be done.
In this regard, the following recommendatons
arise from the above analysis:
Recommendatons for the Legislatve Impro-
vement
1) The norms regulatng collectve lawsuit
needs to be enhanced through the amend-
ment to the provisions which oblige plaints
to prove the existence of justed interest and
to prove the likelihood that the conduct of the
defendant violated the right of a number of
persons as a requirement for the admissibility
of a lawsuit.
2) It is necessary to clearly determine which
claims may be made in a collectve lawsuit.
3) Plaints in proceedings for protecton
against discriminaton should be exempt from
the obligaton of covering the costs of the pro-
ceedings in advance.
4) The opton of providing support to victms
of discriminaton must be expanded through
the introducton of the mechanism of amicus
curiae.
5) Non-governmental organisatons as such
must be allowed to represent victms of dis-
criminaton, and must be accorded the statu-
tory right to act on their own behalf also in
individual cases, subject to obtaining consent
from the victm of discriminaton.
6) The use of situaton testng must be clearly
and explicitly allowed as a method of proof in
proceedings for protecton against discrimina-
ton.
Recommendatons for the State How to
Motvate NGOs
1) The governmental sector should take the
necessary steps to create a stmulatng envi-
ronment for more e cient and actve involve-
ment of NGOs in ant-discriminaton proceed-
ings. These actvites could include creatng
mechanisms to support the development of
civil society, such as set ng up a foundaton
providing support to organizatons of civil soci-
ety in ant-discriminaton proceedings.
2) Relevant insttutons in Bosnia and Herze-
govina (primarily the High Judicial and Pros-
ecutorial Council BiH, the Ministry of Human
Rights and Refugees and the Insttuton of the
Human Rights Ombudsman of BiH) should cre-
ate easily accessible records on judicial pro-
ceedings instgated under the LPDBiH.
Recommendatons for NGOs
1) Non-governmental organizatons should pay
partcular atenton to the on-going training of
their sta with regards to regulatons prohib-
itng discriminaton so that more and more
organizatons can responsibly take on the role
of intervener in individual ant-discriminaton
lawsuits and strengthen their capacites for l-
ing collectve lawsuits.
2) Eorts should contnue in creatng coalitons
and networks of non-governmental organiza-
tons for combatng discriminaton, which will
enable synergy, division of roles and maximiz-
ing the eects of NGO engagement in ant-dis-
criminaton proceedings.
3) Lobbying should be undertaken for the
purpose of creatng a legal and insttutonal
framework for the development of civil soci-
ety, including the establishment of a founda-
ton that will support civil society organiza-
tons in ant-discriminaton proceedings.
29
The Law on Prohibiton of Discriminaton of Republic of Serbia, Artcle 46, paragraph 3.
30
This includes the Consttuton of Bosnia and Herzegovina, Law on Gender Equality in Bosnia and Herzegovina and provisions
on the prohibiton of discriminaton in the labour eld prescribed by the existng labour laws in Bosnia and Herzegovina.
Open Society Fund B&H
Ant-Discriminaton
Program
The policy brief is
produced in the
framework of the Open
Society Fund B&H
Ant-Discriminaton
Program, which brings
together partner
organizatons across
B&H divided into four
teams commited to key
actvites in the eld of
combatng discriminaton:
monitoring,
documentaton and
reportng, strategic
litgaton, policy analysis,
and advocacy.
For more informaton on
the Open Society Fund
B&H Ant-Discriminaton
Program, please visit
the website
www.diskriminacija.ba.
Open
Society Fund
Bosnia & Herzegovina
UNUSED POTENTIAL
8
SOURCES
BiH Regulatons, Documents and Court Decisions
1. Consttutonal Court of Bosnia and Herzegovina. Pra-
vila Ustavnog suda Bosne i Hercegovine [Rules of the
Consttutonal Court of Bosnia and Herzegovina]. (Sa-
rajevo: Consttutonal Court of Bosnia and Herzegovina,
2005). Available at: htp://ccbh.ba/public/down/pravi-
la_bos.pdf (accessed on October 19, 2012).
2. Mostar Municipal Court. Judgment no. 58 PS 08563
11 Ps. April 27, 2012.
3. Mostar Municipal Court. Judgment no. P 58 0 P
056658 09 P. July 6, 2010.
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vil Procedure Code of the Federaton of BiH]. O ci-
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ske [Law on the Suppression of Discriminaton of the
Republic of Croata]. O cial Gazete of the Republic of
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2. Zakon o ravnopravnost polova Republike Srbije
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blic of Montenegro]. O cial Gazete of the Republic of
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Internatonal Documents
1. Council Directve 2000/43/EC of June 29, 2000 im-
plementng the principle of equal treatment between
persons irrespectve or racial or ethnic origin.O cial
Journal of the European Union L180/2000.
2. Council Directve 2000/78/EC of 27 November 2000
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tral and Eastern Europe: Roots, Prospects and Challen-
ges. Human Rights Quarterly 28, issue 2 (2006).
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Zbornik Pravnog fakulteta u Zagrebu [Compendium of the
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1021. Pristna: OSCE Mission in Kosovo, 2007.
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cije [The Proceeding for Protecton against Discrimina-
ton]. In Materijal pripremljen za obuku sudija i tuilaca
o Zakonu o zabrani diskriminacije, [Material prepared
for judicial and prosecutorial training on the Law on the
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al Training Center RS and Judicial and Prosecutorial Trai-
ning Center FBiH, April 3, 2012,. htp://www.rs.cest.gov.
ba/index.php?opton=com_docman&task=view_catego
ry&Itemid=30&subcat=237&catd=44&limitstart=0&lim
it=15&lang=lat, (accessed on May 15, 2012)
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Senad. Komentar Zakona o ravnopravnost polova [Co-
mments on the Law on Gender Equality]. Belgrade: Cen-
ter for Modern Skills, 2010.
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ccessfully to prove discriminaton based on ethnicity.
In The Role of NGOs and Trade Unions in Combatng
Discriminaton, edited by Richard Polacek. Luxembourg:
Publicatons O ce of the European Union, 2009.
9. Uzelac, Alan. Postupak pred sudom [The Proceeding
before Court]. In Vodi uz Zakon o suzbijanju diskrimina-
cije [Guide Accompanying the Law on the Suppression
of Discriminaton], edited by Tena imonovi Einwalter,
pp. 93112. Zagreb: O ce for Human Rights of the Go-
vernment of the Republic of Croata, 2009.
10. Vodineli, Vladimir V. Graanskopravna zatta od
diskriminacije [Civil Law Protecton against Discrimi-
naton]. In Heretcus: asopis za preispitvanje prolost
[Heretcus: Magazine for Reexaminaton of the Past] 6,
No. 34 (2008), pp. 2245.
11. eravi, Goran. Analiza insttucionalne suradnje iz-
medju vladinog i nevladinog sektora u BiH [Analysis of
Insttutonal Cooperaton between the Governmental
and Nongovernmental Sectors in BiH]. Sarajevo: Krona-
uer Consultng, 2008.
Analitka - Center for Social Research is an independent, non-prot, non-governmental policy
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