Gender equality and non-discrimination principle in the context of the Croatian accession to the EU

Transcription

1 1 Gender equality and non-discrimination principle in the context of the Croatian accession to the EU Doc. Dr. Snježana Vasiljević * From the EU perspective, national courts act as EU courts when a case is to be decided that touches upon an area in which EU law is relevant. However, this theoretical legal construction does not take into account the practical problems that national judges may face when applying EU law, such as a combination of a different legal traditions, time constraints and a lack of routine. 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 principle is being neglected in all important areas of freedom, security and justice despite the existence of 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 1 st 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 education beyond that which they had in the law school and are mostly not aware of human rights issues and discrimination as such. They are not * University of Zagreb, Faculty of Law

2 2 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 corrected after 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. Forgotten equality Considering the existing anti-discrimination legislation it is important to understand the concepts of discrimination due to the specific historical and cultural heritage. The issue of concern here is whether a European approach to anti-discrimination policy is different from the one existing in Croatia? Concerning the current equality legal framework in Croatia and the state of implementation of European Union directives, the answer is positive. Antidiscrimination policy shaped by national governments in Croatia has been proven to be inefficient and lacking comprehensive monitoring and evaluation mechanisms. Specialized bodies constructed for that specific purpose have not been fully supported and therefore not significantly effective in implementing measures and imposing sanctions defined by the existing legislation. For instance, these bodies can be used as alternative dispute resolution mechanisms that can resolve potential disputes without going to court. This solution is timesaving (it can take a lot less time to work out and write up an agreement than go through a trial, which can take a year or more), save money (attorney's fees, court costs and fees, fees for expert witnesses and other expenses), and give more control over the case and the outcome (parties participate more actively in creating a workable solution instead of going to court and leave the decision up to a judge). What is more significant and worrying for those who established the anti-discrimination framework is that Croatia fails in harmonizing domestic laws in the field of race and gender

3 3 with each other. The issues of multiple or intersectoral discrimination are neglected as such (e.g. cases of minority women in the labour market or politics). Two or more parallel working groups were working on the same issues but the channel of communication did not actually work. That might be considered either as a coincidence or just a miserable political will. Even though there is a growing tendency of forbidding all grounds of discrimination by the single act, legislative anti-discrimination measures just do not work in Croatia. The situation could be improved by implementing the comprehensive anti-discrimination strategy (now we have particular strategies focusing on one or more protected grounds). Equality cannot be realized without positive duties and proactive strategies. In the Croatian case, the process is reverse, first the legislator creates legislation, then the executive institutions declare the relevant strategy as a follow up to the existing law. If we observe the policy-making process and legislative anti-discrimination framework as a joint venture, this creation simply does not work in Croatia. This process causes, as a consequence, a negative implementation of EU law and a misunderstanding of recently adopted concepts and standards, the lack of statistics and case law in the field of discrimination. For instance, Croatia adopted the Constitutional Law on the Rights of Ethnic Minorities (Official Gazette 155/02, 47/10, 80/10, 91/11), which follows the concepts incorporated into the Council of Europe Framework Convention for the Protection of National Minorities, and the Gender Equality Act (GEA, Official Gazette 82/08, 116/03) which implements basic concepts of the EU primary and secondary law. The Croatian GEA was adopted in July 2003, but in January 2008 the Constitutional Court decided to nullify it because of infringement of constitutional procedures required for its passing in the Parliament (Official Gazette 82/08). The new GEA entered into force on 15 July In the new wording of the GEA, some improvements have been made but the issue of its implementation still remains. One of the difficulties is the implementation of the quota system (40%) for political parties. This strikes women in general, but minority women in particular. The introduction and implementation of quotas at all levels will depend on many factors, including overcoming traditional, patriarchal values. There are, however, disadvantages and challenges even to the quotas, which are in place now. One significant shortcoming of the current quotas within the current GEA is the absence of sanctions. If the party leadership fails to meet its statutory obligations, there are no mechanisms to sanction or punish individuals. In addition, the percentage of women party members is far less than 40 percent, and hence the question of

4 4 positive discrimination arises and jeopardizes the commitment to put women on candidate lists and place them in winnable positions. An interesting example is the intersection of gender and minority quotas. As standalone policies, gender and minority quotas should increase minority women s legislative representation, although to a lesser extent than for majority women and minority men, respectively. Additionally, because national gender quotas affect all political parties in a system, including those that tend to represent minority groups, such policies may advance minority women s representation more effectively than gender quotas voluntarily adopted by one or more political parties. However, there is one particular problem with minorities quotas: how to incorporate gender quota within minority quotas? National gender quotas that regulate representation at the candidate level also vary in the manner and degree to which they are enforced. Simply requiring that parties nominate female candidates does not ensure their election. Parties may run women in unwinnable districts or place them at the bottoms of party lists. Given that they are generally disadvantaged in terms of resources and political experience, women may be less likely to fill quota seats without requirements to include women. Non-implementation of this mechanism could be sanctioned by non-acceptance of the candidate lists by the State Elections Committee. Challenge of discrimination Following its obligation as the new EU member state, Croatia should work more on implementation of EU legal standards and norms in the field of fundamental rights protection. Croatia's parliament adopted the anti-discrimination law despite a strong opposition from religious communities, including the powerful Catholic Church. The law aims at bringing Croatia's legislation into line with the standards of the European Union. The Catholic Church had demanded the exclusion in the legislation of the fight against discrimination based on "sexual identity, expression and orientation." The Republic of Croatia bound itself to respect the norms of international law (e.g. European Convention on Human Rights, CEDAW, etc.), and this obligation derives from the constitutional provision according to which international laws that have been ratified and published are ipso facto a part of the internal legal system.

5 5 Despite the existence of all international and European anti-discrimination norms, women represent the majority of unemployed persons and the unemployment rate of women is highest in Eastern and Central Croatia. In addition, women are also over-represented in poorly paid jobs and it is more difficult for them to get a promotion. They work on fixed term contracts more often than men and are additionally burdened by the bulk of domestic work. Moreover, European concepts imported from the American legal framework, such as sexual harassment, remain weak in national legislation. Cases of sexual harassment have probably never been very actively pursued. Europeans (nor Croats) have never really accepted the doctrinal theory according to which sexual harassment is a form of discrimination. Although continental statutes often declare sexual harassment to be a form of discrimination against women, continental lawyers have always tended to focus on a rather different formula: the dignity of women. Considering that the same field is defined by the Anti-discrimination Act (ADA) as well, in a very similar, but not completely identical way, one comes to the conclusion that judicial practice will have to decide whether the differences are oversights of the legislature or the intention of the legislature to penalize different forms of treatment. Apart from the bases defined in the particular anti-discrimination laws, one should bear in mind that the Constitution defines bases for discrimination as well. This is crucial since the list of bases in the ADA is wider than the one in the Constitution, but the list in the Constitution is open-ended, while the one in the ADA is not. An open-ended clause means that the list of grounds for discrimination is not fully exhausted. From the view of the hierarchy of sources of law, the legal norms of the Constitution are above those of the ADA and it can, therefore, be said that that the open-ended list of the Constitution (the openended clause) can be applied to labor relations. For instance, the Constitution prohibits the discrimination on the basis of education, while the Labor Act does not make an explicit mention of it. However, since the Constitution is of a higher legal power, it can be concluded that discrimination on the basis of education is prohibited in labor relations as well. This conclusion is drawn from a decision of the Constitutional Court from It is also 1 The Constitutional Court does not have the authority to assess the reasons why the legislator failed to mention education as a basis for discrimination in Article 2, Paragraph 1 of the Labor Act. This fact, however, is not relevant for constitutional law since the Constitution itself prohibits discrimination on the basis of education in the Article 14, Paragraph 1, which effectively includes the prohibition of such

6 6 important to point out that the prohibition of discrimination as stipulated by Article 14, paragraph 1 of the Constitution does not independently constitute a basis for a Constitutional lawsuit. 2 According to the decision of the Croatian Constitutional Court, gender equality is one of the highest values of the Croatian constitutional order, prescribed by Article 3 of the Constitution and elaborated in the Gender Equality Act. 3 With this Act, the general bases for the protection and promotion of gender equality and protection from the discrimination on the basis of gender are determined, and the procedure and way of ensuring the implementation of the Act through the Government Office for Gender Equality and the Office of the discrimination in the field of labor relations as well. Decision of the Constitutional Court No. U-I / 2273 / Document. 2 In a decision from 2003, the Constitutional Court states that Article 24, Paragraph 1 of the Constitution contains the constitutional guarantee of non-discrimination. Discrimination as defined by Article 14, paragraph 1 is not an independent legal basis for a constitutional lawsuit, but needs to be put forward together with another (material) constitutional right guaranteed by the Constitution. Decision of the Constitutional Court No U-III / 3192 / In her lawsuit, the plaintiff failed to state the reasons on the basis of which the Court could assess whether the discrimination obstructed her from realizing another right guaranteed to her by the Constitution, and the Court could not identify them either in its procedure. Therefore, the Court assesses the plaintiff's referral to the constitutional prohibition of discrimination as unfounded. 3 Decision of the Constitutional Court No. U-VIIA / 1895 / 2005: With the goal of attaining Gender Equality in the political realm, Article 15 of the Act stipulates that political parties registered in the registry of national political parties need to adopt an action plan on issues of equal representation of men and women in their parties every four years, and, in line with that, define methods for the promotion of equal representation in party bodies, on party slates for parliamentary and local elections. Article 15, Paragraph 3 of the Act stipulates that, when drafting the party slate for the elections, the party needs to take into consideration the principle of Gender Equality. This stipulation, according to the Constitutional Court, does not contain a measure according to which it could be assessed whether it has been violated. This means that the implementation of the principle of Gender Equality will depend on the concrete circumstances of each specific party slate.

7 7 Ombudsperson for Gender Equality defined. Moreover, under the Constitution (Article 140), international norms are also the part of national law and might have direct effect. According to the principle of supremacy, which is one of the general principles of the EU law, EU law is supreme even over provisions of national constitutions. An example of the influence of the principle of a direct effect is the Article 141 (ex 119) of the Treaty establishing the European Community, which stipulates the principle of equal pay for equal work or work for equal value. The implementation of that principle is the Constitutional Court decision brought on April 18, 2007, that men and women have to go into retirement at the same age. The Court decided the stipulation of the Retirement Insurance Act defining the retirement age for men as 65 and for women as 60 to be in contradiction with the constitutional stipulation of gender equality. The legislature was given a deadline to rectify this non-equality on the basis of gender when it comes to the retirement age by Discrimination or non-discrimination principle? Croatian equality legislation does not have yet a clear concept of eradication of discrimination. The pursuit of harmonizing discrimination provisions on the level of the EU provides a challenge, for several reasons. All grounds should be equally tackled. Trends show that racial or ethnic discrimination or religion or belief discrimination are more subject to publicity than likely to be brought to courts. Legal framework remains complex and procedures are unclear to the victims (lengthy procedures, high costs, difficulties in obtaining free legal aid or support). Cuts in budgetary funding affect effective support. There is no harmonization of enforcement mechanisms with regard to legal standing, class action and effective dissuasive sanctions. However, positive developments are court actions in cases of sexual orientation discrimination. 4 Croatia, as a whole, is still considered to be relatively conservative, especially in public reactions regarding lesbian, gay, bisexual, transgender (LGBT) rights and visibility of LGBT people. In the last few years there has been no mass, organized, or group violence towards LGBT activism and manifestations; however, hate speech and incidents against LGBT community and individuals occasionally happen. The positive developments are also present in the justice 4 Case Kontra v. Markovic, Judgment of the Croatian Supreme Court of 28 February 2013.

8 8 system where educational trainings are organized on discrimination, EU law and other human rights issues including war crime trials and speeding up proceedings 5. The independent sector for support of witnesses and victims within the Ministry of Justice has been established recently. In terms of proving discrimination, national law is silent with respect to the use of shifting the burden of proof, including situation testing and the use of statistical evidence. These are tools imported from the European anti-discrimination law. Croatian law does not explicitly permit the use of situation testing and statistical evidence; it does not define it nor establish procedural conditions for or limitations to the admissibility of such evidence in court. However, there are no obstacles, in the anti-discrimination law or in civil procedural legislation, for the use of both. After July 1, 2013, Croatian courts will become the part of the European judicial system. In other words, judges will be obliged to implement the EU law, according to the principles of supremacy and direct effect. This is important from the point of legal harmonization of national law with the EU law. EU law has an important influence on numerous fields of national law. National judges are expected, both by Brussels and nationally, to apply EU law consistently in the cases they deal with. From an EU perspective, national courts act as EU courts when a case is to be decided that touches upon an area in which EU law is relevant. However, this theoretical legal construction does not take into account the practical problems that national judges may face when applying EU law, such as a combination of a different legal traditions, time constraints and a lack of routine. After joining the EU, the jurisprudence of the Court of Justice of the European Union (ECJ) will become a relevant source of law. On the other hand, the inspiration for both ECJ and national antidiscrimination law is the case law of the European Court on Human Rights in Strasbourg. It is the Lisbon Treaty that brings the expansion of the protection of fundamental rights at the level of the EU to a climax. First, human rights are now more deeply enshrined in the Treaty as basic and foundational values of the EU. Second, Article 6(2) TEU provides 5 On 23 January 2013 the Municipal Court in Knin rendered a judgment that the Croatian State must pay compensation to the children of Serb victims killed in the village of Varivode after the Operation "Storm", regardless of the fact that the perpetrators are unknown. It thus addressed for the first time a long-standing grievance relevant for other, similar, cases.

9 9 for the accession of the EU to the ECHR; and third, the Charter of Fundamental Rights and Freedoms attached to the Lisbon Treaty has been given binding status, according to Article 6(3) TEU. This new constitutional setting for fundamental rights protection in Europe raises important questions on the relationship between the EU legal order and its system of fundamental rights protection, in particular the EU Charter of Fundamental Rights, and the legal order of the ECHR, as well as on the relationship between the two courts, and how the accession of the EU to the ECHR is likely to affect the rather complex relationship between these two institutions. National courts will become an active and important player in this European judicial arena. There is no unique opinion which of these two European Courts offer better protection of fundamental rights but the legal procedure for reaching them is quite different. For that reason, legal education in Croatia is of crucial importance in the upcoming years.