LGBT Rights in Serbia: Legal Framework

Even though the Constitution of the Republic of Serbia does not specify sexual orientation as one of the bases upon which discrimination is prohibited, it does, in Article 17, state that before the Constitution and the law, all are equal, and thus all have the right to equal protection from discrimination. This is the starting point for a broad legal framework surrounding the prohibition of discrimination against members of the LGBT community. One of the laws regulating this question is the Anti-Discrimination Law, which lists sexual orientation and gender identity as personal characteristics which are protected from differential or unequal treatment (Article 2). Likewise, the first part of Article 13, which speaks of the more severe forms of discrimination, includes “causing and inciting inequality, hatred and enmity on the grounds of national, racial or religious affiliation, language, political opinions, gender, gender identity, sexual orientation or disability.” Article 21 speaks of discrimination based on sexual orientation, stating that sexual orientation is a private matter and that no one can be forced declare it publically; at the same time everyone has the right to make their orientation known if they wish, and may not be discriminated against if they choose to do so. Article 56 sets out the punishment for such behaviour. Article 54 of the Criminal Code, which lays out the general principles on sentencing, was amended in 2012 to introduce the concept of hate crimes and consider an offense “committed with a hostile intention because of race, religion, national or ethnic origin, gender, sexual orientation or gender identity of another person” as an aggravating circumstance. Several other laws have articles pertaining to the prohibition of discrimination. Article 18 of the Labour Law prohibits direct and indirect discrimination against “persons seeking employment and employees in respect to their sex, origin, language, race, colour of skin, age, pregnancy, health status or disability, nationality, religion, marital status, familial commitments, sexual orientation, political or other belief, social background, financial status, membership in political organizations, trade unions or any other personal quality.” The Higher Education Law similarly outlines in Article 8 that everyone who has completed secondary education has the right to higher education, irrespective of “race, colour, gender, sexual orientation, ethnicity, national origin or social background, language, religion, political or any other opinion, birth, existence of a sense or movement handicap or property.” Article 21 of the Broadcasting Law states that the state broadcasting agency “shall ensure that the broadcasters’ programmes do not contain information inciting discrimination, hatred or violence against an individual or a group of individuals on grounds of their political affiliation, or their race, religion, nationality, ethnicity, gender or sexual orientation,” while Article 79 states that “public broadcasting service carriers shall in their news programme production and broadcasting abide by the principles of impartiality and fairness in treating different political interests and different persons, uphold the freedom and pluralism of the public expression of opinions, and prevent any form of racial, religious, national, ethnic or other intolerance or hatred, or intolerance on the grounds of sexual orientation.” In the section about hate speech, the Public Information Law forbids the publishing of “ideas, information and opinions that incite discrimination, hatred or violence against an individual or a group of individuals on grounds of their race, religion, nationality, ethnicity or sex, or their sexual inclination, notwithstanding whether a criminal offence has been committed by such publication.” The Law on Youth, in Article 5, forbids every kind of differential and unequal treatment towards young people, directly or indirectly, on whatever basis, including sexual orientation and gender identity. Article 36 of the law regulation student standards prohibits institutional activities which in an open or covert way marginalize, diminish, or discriminate against individuals on whatever basis (assuming sexual orientation as well). Article 25 of the Law on Social Welfare lists discrimination in its principles of social protection and forbids discrimination against users of social welfare on the basis of race, sex, age, nationality, social origin, sexual orientation, religion, political, union or other membership, property status, culture, language, disability, the nature of their social exclusion, or other personal characteristics.

It is also important to mention the Public Assembly Act, which is problematic for reasons already witnessed in 2010. The biggest probably is its discordance with the Constitution. However, until now the Ministry of Interior Affairs has not made suggestions for a new law about the freedom of assembly, even with very concrete recommendations made by the Venetian Commission and the Working group for the advancement of the freedom of assembly. Serbia has an adequate legal framework for the struggle against violence and discrimination but its implementation remains a problem. This legal framework was rounded out at the end of 2012 with the adoption of hate crimes in the Criminal Code, which was the most significant step taken last year which had to do with LGBT rights. On the initiative of the Gay Straight Alliance (GSA) and the Lawyers’ Committee on Human Rights (YUCOM), and on the recommendation of the Ministry of Justice and government administration, the Serbian Criminal Code was amended, adding Article 54 which deals specifically with crimes motivated out of hatred and considers them an aggravating circumstance. The nonexistence of state statistics about incidents of violence on the basis of sexual orientation and gender identity poses a significant challenge in the work of improving the status of the LGBT population. In the databases of the authorized institutions, these incidents are listed by the type of crime and not motive, though it is expected that the state will begin to track these statistics since the implementation of the hate crime law.

Serbia as yet has no legislation which would regulate same-sex relationships and property and other relations which these relationships. However, in 2012, the organization Labris and other members of the Coalition against discrimination presented a model Law on the registration of same-sex relationships[1], and the model Law on the recognition of the legal consequences of sex changes and the confirmation of transsexualism, and the process of lobbying for their adoption is in progress.


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