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Once established rights should not be diminished or abolished

Announcement regarding publishing Draft Law on Amendments of the Criminal Code of Republic of Srpska

Human Rights House Banja Luka expresses regret, worrying and reserve about decision of the Government of Republic of Srpska to approach amendments of the Criminal Code of Republic of Srpska with one goal – to withdraw the term “gender identity” from text of the law.

We express regret and worrying because in this way the existing list of explicitly stated protected personal characteristics has been narrowed which is contrary to the provision that once established rights should not be diminished or abolished as well as to the jurisprudence of the European Court of Human Rights.  

Although European Convention on Human Rights does not state all protected characteristics explicitly, European Court of Human Rights through its jurisprudence accepted the extended line of characteristics including “age”, “health”, “marital of family status”, “emigrational status” and among other things “gender identity”. Thus this court exponentially expended the prevalence of the protected characteristics in accordance with European Convention which is indirectly applicable in our legislative system and this is the practice we would follow as well.   

We are aware that, despite proposed amendments, “gender identity” remains implicitly protected under clause “other personal characteristics” however by excluding gender identity from the list of explicitly protected characteristics the judges are given the power that in each specific case decide if it is protected ground or not.

Without clear legislation recognition it is difficult to fight discrimination, violence and harassment that members of the minority and vulnerable groups experience. This can lead to increasing risk form lack of the protection against violence for people with different gender identities because the competent authorities will not have clear guidelines on how to respond to this. Therefore, it can happen that hate crimes toward individuals with different gender identities will not be recognized as such by the competent authorities which will lead to minor penalties for perpetrators or in some cases to complete lack of the legal protection for victims.

On the other hand, our reserve is the consequence of the immanent reaction of the Government of Republic of Srpska to request for these amendments. Namely, from the post on the social network X by the president Milorad Dodik back in January where he said that it is “unacceptable that the gender ideology is introduced step by step” into laws over official request for amending Criminal Code of Republic of Srpska to decision of the Government of RS in July, has been passed less than five months! Many other initiatives of the civil society organizations in the Republic of Srpska are waiting for years to be discussed so this speed of decision making came all of sudden and bring us the faith that some of these initiatives could be discussed and even accepted! (such as for example 10 year-old initiative on establishing Alimony Fund in the Republic of Srpska).

In addition to above mentioned, our reserve comes from the fact that Government of Republic of Srpska in this way actually shut up the mouth itself by withdrawing expert paper of their own employees that were part of the Working Group for drafting Law on Protection against Domestic Violence and Violence against Women which was given up at the end “due to the unacceptable gender ideology”. This working group was consisted of representatives from six ministries of the Government of Republic of Srpska and representatives of the Regional Public Prosecution Office Banja Luka, Gender Center and a civil society organization.

It seems that the Government of Republic of Srpska decided to neglect opinions and knowledge of its own experts and women’s non-government organizations and thus missed the chance to upgrade and modernize existing legislative framework regarding protection against all forms of gender based violence which affects women in a far greater extent. It appears that someone’s small and political interests had priority over more socially important legislative proposals. The proposal to abolish “gender identity” from explicit list of especially protected characteristics in Criminal Code of Republic of Srpska is regressive step which, only on the surface, diminish the prevalence of the legislative protection available to vulnerable individuals and groups.  

This move effectively undermines significant progress achieved in preserving and improving individual human rights and freedoms in the Republic of Srpska. We remind the executive and legislative government in the Republic of Srpska that it is imperative to maintain and expend, instead limiting, explicit list of protected characteristics in order to reflect our determination to human rights and thus provide clear, undeniable protection for all individuals.

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