The Burden of Proving Direct and Indirect Discrimination

The key improvement when the Law on Prohibition of Discrimination was adopted was the provision according to which the burden of proof (that discrimination did not occur) transfers to the defendant if the plaintiff manages to demonstrate the existence of assumption or likelihood of discrimination in a concrete case. However, available reports on anti-discrimination court proceedings in Bosnia and Herzegovina indicate that domestic courts introduce very high threshold plaintiffs must reach in order to shift the burden of proof on the defendant, or even completely ignore this important principle by applying general rules of civil procedure in cases related to discrimination as well, despite the more favorable provision of the LPD.

Themes: Human RightsJudiciary and Access to Justice
Boris Topić

Therefore, the main purpose of this commentary is to draw attention to the key aspects and specifics of proving in anti-discrimination court cases, with a focus on direct and indirect discrimination as the most familiar forms of discrimination.

This Commentary is published within the project “Equality for All: Civil Society Coalition against Discrimination“, and is implemented in cooperation with Mediacentar Sarajevo, Analitika – Center for Social Research, Rights for All and Vaša prava BiH. This project is financed by USAID and Open Society Fund Bosnia and Herzegovina.

This publication is published by the generous support of the American People through the United States Agency for International Development (USAID). The contents of this Commentary are the sole responsibility of the author and do not necessarily reflect the views of USAID or the United States Government.

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