President, Ivo Josipovic, and Croatian Prime Minister, Jadranka Kosor,
signing Croatia´s Accession Treaty, Brussels, 9 December 2011- photo: Mario Salerno - some rights reserved.
by Dr. Snježana Vasiljević
The non-discrimination principle is the core principle of the internal market of the European Union. Moreover, it is considered as the highest value in all human rights international agreements. It is also considered as the highest value in the Croatian Constitution. How come, then, that such a principle is being neglected in all important areas of freedom, security and justice despite the existence of an advanced anti-discrimination legal framework? This essay is an attempt to provide some thoughts and answers to this question.
Croatia has a comprehensive anti-discrimination legal framework since the adoption of the Anti-discrimination Act in 2008, which entered into force on January 1st2009. However, there is still a lack of reported cases of discrimination as well as final judgments before courts. If we analyze the absence of court practice in cases of discrimination, situation reflects the similar problems and their consequences. In legal profession, judges and attorneys have not gone through the advanced legal educationbeyond that which they had in the law school and are mostly not aware of human rights issues and discrimination as such. They are not trained to apply European norms and standards. The consequence is either wrong implementation or non-implementation of European anti-discrimination norms (they will be directly applicable). This failure might be correctedafter joining the EU through the concept of the state responsibility for damages. Victims of discrimination, as it is, remain helpless, alone and unprotected. Victims are still forced to prove that they are victims, despite the legal obligation to shift the burden of proof in discrimination cases. The lack of judgments in discrimination cases does not really worry Croatian lawyers and intellectual elite. In the absence of court decisions, are we supposed to support discrimination or fight against it? However, the European legislature already has a developed system of legal norms and the case law of the Court of Justice of the European Union represents a relevant source of law, which makes their implementation easier. But are we familiar with European best practices? Croatia has yet to start developing such a system.
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2013