In the fallowing period we will publish articles from our Annual Report on the State of Human Rights of LGBTI People in Bosnia and Herzegovina
Art. 2 of the Constitution of BiH prohibits discrimination on different grounds. Unfortunately, sexual
In the fallowing period we will publish articles from our Annual Report on the State of Human Rights of LGBTI People in Bosnia and Herzegovina
Art. 2 of the Constitution of BiH prohibits discrimination on different grounds. Unfortunately, sexual orientation, gender identity and sex characteristics – the grounds important for LGBTI people – are not included in the exhaustive list of protected categories.
The first law that prescribed the prohibition of discrimination based on gender and sexual orientation is the Law on Gender Equality in BiH from 2003. The 2009 Anti-Discrimination Law prohibits discrimination on the basis of “sexual expression and/or orientation” in all aspects of public life, including education, employment, healthcare, provision of services, etc. By adopting the amendments to its Anti-Discrimination Law, Bosnia and Herzegovina got an improved legal framework for the protection from discrimination at last. Through these amendments, sexual orientation and gender identity have finally been accurately formulated as prohibited grounds for discrimination. In addition, “sex characteristics” have been introduced as a prohibited ground making BiH the first country in South-East Europe to have a comprehensive Anti-Discrimination Law which protects intersex persons from discrimination in all areas of life. Finally, the Law regulates the protection of lesbian, gay, bisexual, trans* and intersex (LGBTI) persons from discrimination in the appropriate way.
Although there is an obligation to harmonize all laws with the Anti-Discrimination Law, many laws at the state, entity and cantonal level do not include sexual orientation, gender identity and/or sex characteristics as the grounds protected from discrimination. It is of particular concern in the context of LGBTI human rights that laws on labour and employment, social and health insurance, inter alia, provide for a much more restrictive list of characteristics protected from discrimination than is the case with the Anti-Discrimination Law of BiH.
Institutional framework for protection from discrimination is still extremely weak. Information on discrimination is neither being collected nor analysed. The Ministry of Human Rights and Refugees of BiH still has not established a database (a task it was meant to complete within 90 days from the passage of the Anti-Discrimination Law in 2009). Judicial practice has demonstrated that the Courts are not the most efficient way of addressing issues of discrimination, because it can take as long as three years for the cases to be ruled on. Research shows that LGBTI persons do not trust the legal system and that institutions are not trying very hard to gain their trust.
The Institution of the Ombudsman BiH has very limited resources to work on cases of discrimination. Although the Anti-Discrimination Law envisions special budget to be provided to the Division for Eliminating All Forms of Discrimination within the Institution of the Ombudsman, this was never realized. In general, the Institution of Ombudsman does not have the capacities to adequately advocate the rights of LGBTI persons. As is stated in the Special Report on LGBTI human rights in BiH drafted by the Institution of Human Rights Ombudsman, since the Anti-Discrimination Law entered into force, from 2009 to 2016, the Institution registered around 40 cases of discrimination on the ground of sexual orientation. However, the majority of cases have been opened “ex officio” or based on reports of non-governmental organizations.
Judges and prosecutors across the country receive very little or no training on the BiH Anti-Discrimination Law. The biggest problem is the lack of mandatory formal training for judges and prosecutors on LGBTI discrimination and rights. Without the trainings organized by civil society there would be no education on LGBTI people’s rights. In 2016 Sarajevo Open Centre trained 20 judges.
Special Report on the State of LGBT Rights in Bosnia and Herzegovina by the Institution of Human Rights Ombudsman of Bosnia and Herzegovina
In September 2016, the BiH Institution of Human Rights Ombudsman published a Special Report on the State of LGBT Rights in Bosnia and Herzegovina. The aim of the report was to analyse the current state of affairs and the actual level of access to human rights available to members of LGBT community, to inform the competent bodies on the measures they need to take to improve the position of this population, and to raise the awareness of citizens in Bosnia and Herzegovina and inform the public about the degree to which LGBT rights are exercised. The starting point for the report were international human rights standards, UN bodies’ recommendations, the UPR and regional human rights protection mechanisms.
The conclusion of this special report brings a range of recommendations provided by the Ombudsmen in various areas. They state that the holders of public functions should be more open in protecting LGBTI citizens both in cases of incidents and generally, as we still live in a relatively conservative society strongly influenced by religious organizations. The report states that, according to knowledge of BiH Ombudsmen, there have been no cases of discrimination on the ground of sexual orientation which ended up in court. The Ombudsmen especially pointed to the fact that “the right to freedom of assembly means not only the passive attitude of the state towards peaceful gatherings, but a 