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In the heart of Europe: systems based on discrimination

March 03rd, 2021
topic: Human Rights
by: Katarina Panić
located in: Bosnia and Herzegovina, Croatia
tags: Balkan Wars, Bosnia and Herzegovina, Croatia, human rights, Serbia

Two Croatian citizens and one person from Bosnia and Herzegovina (BiH) addressed the European Court of Human Rights (ECHR) after they exhausted all the domestic avenues. They never learned that they won their lawsuit since they died while the cases were pending before the Strasbourg-based court. Nevertheless, their family members continued to fight for justice that appeared to have come a bit too late.

When the 1991 war in Croatia broke out, Stoja Trivkanović (born 1950) was one of more than a half-million Serbs that accounted for 12.2 percent of the total population. On 25 August, 1991, the police entered Trivkanović’s house, and seized her son Zoran (who was 23 at the time), along with her other son, Berislav (18) and their father Nikola (48). The following day, Nikola was found tortured and shot dead. Her sons were never seen again. 

In 2005, Trivkanović’s sons were declared legally dead. A year later, she brought a civil action against the state. It was rejected, since no criminal court found an offence had been committed. In 2011, a police commander was indicted for committing war crimes against the civilian population, including Stoja’s sons. She reopened the civil proceedings in 2014, but the local court dismissed her application, maintaining that the man in question had been convicted for her sons’ disappearance, not deaths. 

Trivkanović died in December 2019, and her grandsons continued the application in her stead. 

Last month, the ECHR found Croatia did violate her right to a fair trial. At the same time, the grandsons ran the case over their grandpa’s murder. Hopefully, the state will spare their time, relying on the similar ECHR verdict over their grandfather’s death.

Teacher fired after his mother tongue was declared the enemy’s language

Another Croatian citizen, Mile Novaković (born 1944) worked as a teacher from 1971. When the war tore up Yugoslavia during the 1990s, his mother tongue - Serbo-Croatian - became unpopular, and each country claimed its own part of it. Linguistically, however, it was practically the same language with two variants: western in Croatia and eastern in Serbia. Even today, 30 years after the war started, speakers of either dialect understand each other perfectly.

Novaković taught in a secondary school in Darda, a region that was peacefully reintegrated into Croatian territory in 1998. The very same year, based on an anonymous complaint by students of Croatian origin that Novaković and three other teachers of Serbian origin were not using the standard Croatian language when teaching, an education inspector attended their classes. One day, Novaković used a word from the eastern variant, saying strop (ceiling) instead of the western term tavanica, and got fired.  

After all civil action before domestic courts from May 1999 to July 2014, Novaković appealed to the ECHR in November 2014. Six years later, the Court found dismissal closely related to the plaintiff’s ethnic origin and age, noting that the teacher-inspection was performed only against people of Serbian descent. 

There also were no relevant and sufficient reasons provided for why the plaintiff could not be expected to improve his Croatian language skills. Namely, the school had stated it could not offer this teacher any further education or training, “because given his age (55) and years of service (29), it is not justified to expect him to be able to change his permanent characteristics and capabilities.”  

Novaković died in 2019, and his widow, daughter and son continued fighting the case.

Champions in constitutional discrimination

It seems easy to bring legal cases against BiH in relation to free election rights. Yet unlike in neighbouring Croatia, the Constitution here is intrinsically discriminatory. 

“The Constitution contains ethnic and residence-based provisions which are not in line with the European Convention on Human Rights,” the opinion of the European Commission on BiH’s application for membership reads. This means that almost every single citizen could be discriminated against in one way or another. 

Since 2009, when ECHR ruled in favour of Jakob Finci and Dervo Sejdić, finding they can not run for public office because of being Jew and Roma, there were many similar cases with the same outcome (i.e Zornić, Pilav, Baralija). Svetozar Pudarić’s case one is the latest example, and it ended last December, nine months after the plaintiff passed away. 

His widow informed the court that she wished to pursue the application. The court found that Pudarić had been discriminated against when he was forbidden from running for the state presidency post as a politician residing in the part of the country where only two demographics (Bosniacs and Croats) were able to do so, while Serbs may be represented only among those who live in another area. 

“Reflecting an overall disregard for the rule of law, authorities have persistently failed to implement ECHR’s rulings in the ‘Sejdić & Finci’ and related cases, leaving in place discrimination against the right of certain persons to stand for public office,” the report of the High Representative to the UN Security Council reads. 

The state responded firmly, with full awareness of its responsibility: the political environment was not yet conducive to adopting such changes, it claimed.

Article 8 skewed to indefinitely perpetuate discrimination

Despite the applicants’ deaths in these cases, human rights activists have not been focused on that, saying that the lengths of trials are not too long, bearing in mind that there are usually five different level courts in a chain (municipal, county, supreme, constitutional and international) and every one of them has time-consuming procedures. 

They do object to a lack of political will on the national level to enforce the judgements and avoid using the mechanisms to force the states to do so on the international level.  

“There are measures from denying the right to vote in the Council of Europe Parliamentary Assembly to excluding the state from the Council of Europe membership. I doubt it is going to happen,” one legal expert told FairPlanet. 

Back to the Croatian teacher’s case - it reopened the question from several previous cases: is too much space given to interpret the right to private life, especially in employment-related scenarios? Namely, the decision was not made unanimously, but by six votes to one. Judge Krzysztof Wojtyczek said he agreed with the part related to the discrimination, but respectfully disagreed with the violation of private life (Article 8 of the Convention), since the ability to speak a specific language as a criterion for a particular position is not related to private life, and the language of education belongs to the public sphere. He recalled one of his colleagues who also dissented in one of the previous cases similar to this one.

“The perspective of examining privacy in terms of the right and value protected by Article 8 must be returned to its natural angle. To present it graphically, 8 should indeed be seen as 8 and not - as increasingly tends to be the case - like the sign of infinity: ∞,” the judge from Poland quoted his colleague from Hungary.

Image: Patrik Horvath.

Article written by:
Katarina Panić
Katarina Panić
Author
Bosnia and Herzegovina Croatia
European Court of Human Rights, Strasbourg France.
© Construction Photography/ Avalon / Contributor
A man passes by the ruins of the 1991-1995 Serbo-Croatian war in the central Croatian town of Dvor, some 150 kilometers from capital Zagreb on January 18, 2012.
© Hrvoje Polan / Staff
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