Concluding observations on the combined fourth and fifth periodic reports of Bosnia and Herzegovina

Addendum

Note: The present document is being circulated in English, French and Spanish only.

* The present document is being issued without formal editing.

Information provided by Bosnia and Herzegovina in follow‑up to the concluding observations *

[Date received: 1 September 2015]

Women in post-conflict situations

As the answer to the Concluding Observation No. 10, Bosnia and Herzegovina delivers the following information on implemented activities:

1. 10 (a) Speed up the implementation of the National War Crimes Strategy and increase the number of prosecutions of war crimes cases by allocating more financial resources and investigative capacities to address the large backlog of cases;

1.1.The Court of Bosnia and Herzegovina is designated to implement a series of strategic measures and objectives set forth in the National Strategy for Processing of War Crimes Cases (The Strategy). One of the objectives is to ensure a functional mechanism of the management of war crimes cases, that is, their distribution between the state-level judiciary and judiciaries of the entities and of Brcko District of Bosnia and Herzegovina, in order to ensure that the most complex war crimes are processed before the Court and the Prosecutor’s Office of Bosnia and Herzegovina, and that cases deemed less complex be processed before cantonal, respectively, district courts, entity prosecutors’ offices and the Municipal Court and Prosecutor’s Office of Brcko District of Bosnia Herzegovina. The assessment of the complexity of unresolved cases, that have been pending before the state, entity judiciary and judiciary of the Brcko District of Bosnia Herzegovina, was conducted and based on which decisions were made about changing of the jurisdiction, or transfer of the procedure from the state to the entity level, or taking over the cases from the entity to the state level.

1.2.The criteria for the assessment of the complexity of the cases are defined in the provisions of the Criminal Procedure Code of Bosnia and Herzegovina which are governing conditions for making a decision on taking over or transfer of cases. The complexity of the case is based on three main indicators — the gravity of the crime, the characteristics and the role of the perpetrator and other relevant circumstances. In early 2011, within the Court of Bosnia and Herzegovina was appointed the permanent Council of the Section I for War Crimes of the Criminal Division (the Council), which is responsible for reviewing and assessing the complexity of cases and making decisions about their adoption within the Court’s jurisdiction or transferring to the procedure before competent courts. In the first half of 2014, the Council has completed the review and assessment of complexity of about 900 war crime cases which were pending before the entity prosecutors’ offices and the Prosecutor’s Office of Brcko District of Bosnia and Herzegovina, and completed the transfer of all complex cases.

1.3.Out of all the indictments which the Prosecution of Bosnia and Herzegovina has issued in 2013, only 38.5 per cent were raised in the most complex cases for which the prosecution the Strategy foresees a period of 7 years e.g. those which should be priority to the Prosecutor’s Office of Bosnia and Herzegovina. This trend has continued in 2014 during which only 33 per cent of the total number of indictments raised in cases that fall into the category of the most complex and highest priority, while 38 per cent was raised in cases from the category with a term of processing up to 15 years, and 29 per cent in cases which are eligible for processing before the entity courts.

1.4.The Court of Bosnia and Herzegovina has successfully realized strategic obligation relating to the establishment and updating of a centralized database on the prosecution of war crimes before courts in the entire Bosnia and Herzegovina. As provided in the Strategy, centralized database contains information on the number of confirmed indictments, first instance and final verdicts rendered in war crimes cases before the courts in Bosnia and Herzegovina as of 1 March 2003. In the period from 2005 to 1 June 2015 the Court of Bosnia and Herzegovina has finalized 126 war crimes cases. Until 2012, the number of fully completed cases has increased, but in 2012 it drastically dropped. In the coming years, compared to 2011, it gradually began to decline. There are 76 cases currently pending before Section I for War Crimes of the Court of Bosnia and Herzegovina.

1.5.According to data of the Court of Bosnia and Herzegovina, in the period from 2005 to 1 June 2015, a total of 38 war-crime cases with elements of sexual violence against a total of 45 persons were closed with final verdicts. Of that number, 22 persons were convicted and 16 persons were partially convicted (these persons are convicted for committing of certain criminal acts with elements of sexual violence, and for certain are liberated), while 7 persons were released of charges for criminal acts with elements of sexual violence.

2. 10 (b) Amend all relevant criminal codes to include a definition of wartime sexual violence in line with international standards, including a specific definition of rape as a war crime and as a crime against humanity, in order to adequately reflect the gravity of the crimes committed and intensify its efforts to harmonize the jurisprudence and sentencing practices of its courts throughout the State party, by establishing effective cooperation mechanisms between prosecutors and courts competent to deal with war crimes at all levels of the State party;

2.1.The provisions of the Criminal Code of Bosnia and Herzegovina are in accordance with the relevant standards of the Rome Statute of the International Criminal Court and recognize persecution on “political, racial, national, ethnic, cultural, religious, sexual or other grounds” as a crime against humanity. Until today, the Court of Bosnia and Herzegovina has reached the first judgments on this basis in the three cases. This is the first time that gender is provided as the basis for prosecution in an international legal instrument. According to the findings of the OSCE Mission, this is the first time that, before an international or national criminal court, it was established that sexual violence is a crime against humanity or gender-based persecution.

2.2.Implementation of the National Strategy helps to resolve cases involving sexual violence by ensuring that the burden of processing is distributed between the judiciary at the state level and in the entities, and cantons in case of the Federation of Bosnia and Herzegovina. Financing of the above mentioned activities is planned in the sector proposal for the judiciary in Bosnia and Herzegovina, which is funded from the European Union under the pre-accession assistance programme IPA 2012/2013.

2.3.Amendments to the Criminal Code of the Republika Srpska amended the Article 168 “Abuse, torture and other inhuman and degrading treatment”, and Article 193 “Rape”. Amendment of the Article 168 is harmonized with the recommendation of the Committee against Torture, and Article 193 prescribes the hatred as a qualified form of the offense, and the penalty framework was increased.

10 (c) Expedite the adoption of pending draft laws and programmes designed to ensure effective access to justice for all women victims of wartime sexual violence, including adequate reparation, such as the Draft Law on the Rights of Victims of Torture and Civilian War Victims, the Programme for Victims of Sexual Violence in Conflict and Torture (2013-2016) and the Draft Strategy on Transitional Justice aimed at improving access to justice;

2.4.In 2011, the Working Group consisting of representatives of the Ministry of Human Rights and Refugees of Bosnia and Herzegovina and other relevant institutions, together with representatives of non-governmental organizations working with victims of torture, in the framework of the project “Together Against Torture in Bosnia and Herzegovina-Network”, has started to create the third text of the Law on the Rights of Victims of Torture in Bosnia and Herzegovina. The draft text was completed in late 2012, but the Government of the Republika Srpska did not approve it. The Ministry of Human Rights and Refugees of Bosnia and Herzegovina has prepared an Information on activities during the development of the legal framework for regulating the status of victims of torture in Bosnia and Herzegovina, and together with the third text of the draft Law, had submitted it to the Council of Ministers of Bosnia and Herzegovina. The Council of Ministers of Bosnia and Herzegovina has postponed the consideration of the Information in order to perform additional consultations. The draft Law is in the procedure.

2.5.The Programme for Victims of Wartime Rape, Sexual Abuse and Torture, and their Families in Bosnia and Herzegovina 2013-2016 was created with the assistance of the academic community, experts and representatives of civil society, but it was not approved by all levels of government in Bosnia and Herzegovina.

2.6.The Transitional Justice Draft Strategy of Bosnia and Herzegovina and the Action Plan for its implementation are completed in April 2012 and submitted to the Council of Ministers of Bosnia and Herzegovina, and it is still in the procedure. UNDP is trying to speed up the adoption of this strategic document so the UNDP Resident Representative has submitted a letter to the Chairman of the Council of Ministers of Bosnia and Herzegovina and on this occasion he informed that they will provide technical assistance related to the promotion and implementation of the rights in the field of transitional justice.

2.7.Gender Centre of Republika Srpska has initiated and developed the Study on the position of Serb women who are victims of war sexual violence in Bosnia and Herzegovina, and based on the findings and recommendations of the Study they have made a special Information which was adopted by the Government and the National Assembly of the Republika Srpska in April 2015. The Study and Information are containing recommendations for action.

2.8.Based on the status of civilian victims of war, the rights exercised in the territory Brcko District of Bosnia and Herzegovina are regulated by the Decision of the Assembly of Brcko District of Bosnia and Herzegovina on protection of civilian victims of war, and drafting the Law on Protection of Civilian Victims of War of the Brcko District of Bosnia and Herzegovina is in the procedure, which will create the conditions that regulate this area in a manner as set out in the Bosnia and Herzegovina entities.

2.9.United Nations agencies in Bosnia and Herzegovina (UNDP, UNFPA, UN‑Women and IOM) have developed a new joint support programme called “Seeking care, support and justice for survivors of conflict-related sexual violence in Bosnia and Herzegovina”. The measures envisaged in this programme are in accordance with the above recommendations, and it is expected that this programme will contribute to resolving the problems and needs of women victims of war.

2.10.When it comes to conviction of rapist, for the first time, the Court of Bosnia and Herzegovina has ruled the payment of compensation to the victim. According to the cantonal courts and prosecutors’ offices of the Federation of Bosnia and Herzegovina, for the crimes of rape were conducted separate procedures where the victim with the property-rights claim was addressed to the civil procedure, but it is not known that within the criminal verdict it was decided on the claim for compensation.

3. 10 (d) Ensure the effective implementation of the new Law on Witness Protection Programme and establish sustainable and operational witness protection measures at district and cantonal levels;

3.1.The new Law on Witness Protection Pr ogram in Bosnia and Herzegovina provides for efficient protection of a witness during and after criminal proceedings in order to enable the witness to testify freely and openly in criminal proceedings before the Court of Bosnia and Herzegovina.

3.2.According to the Strategy, the Court of Bosnia and Herzegovina is responsible for establishment and improvement of the witness protection system in entire Bosnia and Herzegovina. In the previous period, the Court has taken a leading role in the establishment of a witness support network. This role is reflected in the definition of relevant entities that may be involved in providing support to witnesses and constant increase of their number. Witness Support Section of the Court of Bosnia and Herzegovina has provided support in the framework of the OSCE / ODIHR, “Justice and war crimes”. The Section has launched the initiative for linking of local offices for witness support in courts and prosecutor’s offices with government institutions and non-governmental sector in their local region. One of the tasks of the Section is to identify the partners in the community, and then to create a support network. The Court continuously cooperates with the existing network of NGOs which provides necessary assistance and support to witnesses.

3.3.When it comes to the establishment of the Witness Support Section at the entity level, within the UNDP Project “Support to proceeding of war crimes cases in Bosnia and Herzegovina” it was formed several offices which have started to operate in full capacities since September 2010. Currently, a total of 16 witness support sections exist in courts and prosecutors’ offices in Bosnia and Herzegovina. The associate professionals (psychologists) who are employed in these sections have gone through the practical training. Through coordinated meetings with all courts and prosecutors’ offices cooperation has been established with the aim of exchanging of experiences and knowledge, and overcoming difficulties which are encountering in practice.

3.4.Witnesses Support Sections are established in the district prosecutors’ offices and courts of Republika Srpska as well as in a smaller number of cantonal courts and prosecutors’ offices of the Federation of Bosnia and Herzegovina. Officials in charge for the witness support within their community, have established contacts (i.e. formed a network) with the relevant institutions that, within their professional capacity, can respond to the needs of witnesses. In areas where the Witness Support Section have not yet been formed, non-governmental organizations which may provide support to witnesses are identified and when it is necessary, these NGO will provide support to witnesses until the establishment of sections within courts and prosecutors’ offices in that region.

3.5.In places where sections are not established yet, the problem was tried to be overcome by adopting of the Rules on the Application of witness protection measures in order to ensure the proper application of procedural measures of protection for witnesses under threat and vulnerable witnesses, to ensure that all witnesses can freely testify in a safe environment and that the experience during the trial do not cause additional suffering and trauma to witnesses. As the first step of establishment of the Witness Support Unit, in some cantonal prosecutor’s offices the associates for witness support have already began to work. These associates provide psycho-social, informational and organizational support and assistance to witnesses before, during and after the court proceedings.

3.6.In the previous period numerous protocols were signed on cooperation of relevant ministries, judicial institutions, education institutions and non‑governmental organizations related to providing the support to victims and victims/witnesses in war crimes cases, sexual violence and other forms of criminal offenses, in which, relevant institutions are obliged to resolve all problems in terms of providing support to victims and witnesses in war crimes cases.

3.7.It is extremely important that even after 20 years after the war there is a genuine commitment of the judicial authorities of Bosnia and Herzegovina — especially the Special Department for War Crimes within the Prosecutor’s Office of Bosnia and Herzegovina and Section I for War Crimes of the Court of Bosnia and Herzegovina — to ensure the justice for victims of sexual violence.

4. Employment

Answer to the Concluding observation No. 34. — Information on conducted activities

34 (a) Adopt temporary special measures in accordance with article 4, paragraph 1, of the Convention and the Committee’s general recommendation No. 25, aimed at achieving de facto equal opportunities for women and men in the labour market, including disadvantaged groups of women, and establish special training programmes and counselling for different groups of unemployed women, including by promoting women’s entrepreneurship;

4.1.In accordance with the existing laws and regulations, active employment policies are implemented through the Agency for Labour and Employment of Bosnia and Herzegovina, the Federal Employment Service and Cantonal Employment Services (in the Federation of Bosnia and Herzegovina), the Employment Service of the Republika Srpska and Employment Service of Brcko District of Bosnia and Herzegovina. All conducted activities, in particular, active employment policies, are in accordance with the primary objective set forth in the Employment Strategy in Bosnia and Herzegovina 2010-2014 (in line with the principles of gender equality). The objective is to increase the quality and quantity of jobs and to promote social inclusion and fight against inequalities.

4.2.The Labour and Employment Agency of Bosnia and Herzegovina and the German Federal Employment Agency — Central Placement Services (ZAV) have signed the Agreement concerning placement of workers in health care jobs in the FR Germany for Bosnia and Herzegovina citizens in Germany. In cooperation with entity employment services and Employment Service of Brcko District of Bosnia and Herzegovina, in 2013 through the Triple Win project it was employed 184 persons, in 2014, 103 employed and it was mediated in the employment of 463 persons (mostly women).

4.3.In order to develop entrepreneurship among women, in Republika Srpska the Law on the Development of Small and Medium Enterprises has been adopted which, as a special measure, provides for the development of women’s entrepreneurship. This implies the adoption of a programme of support, training, and better access to financing and association of entrepreneurs, which, in the previous legislative solution, was not provided. The above mentioned Law provides for incentives for the training of beginners in business, employees in the field of small and medium enterprises, entrepreneurs, youth and others.

4.4.As a special measure, Government of Republika Srpska has adopted the 2012-2015 Program for Development of Women Entrepreneurship in Republika Srpska and Strategy for the Development of Small and Medium Enterprises 2014-2018 in order to develop detailed plan of support to women entrepreneurs in terms of establishment, employment and participation in management through education, promotion and training. Such support should significantly contribute to the implementation of the principle of gender equality in economic and social life.

4.5.As a special measure, Strategic Plan of Rural Development in Republika Srpska 2009-2015 provides the support to the development of women’s entrepreneurship in rural areas through the implementation of training activities of women and the development of business activities in rural areas, while the 2013-2020 Programme of Rural Development of the Federation and Herzegovina provides detail tasks and activities of stakeholders in the process of adopting the new strategic plan for rural development in the Federation of Bosnia and Herzegovina.

4.6.In 2011-2015 Employment Strategy of Republika Srpska, women are identified as a vulnerable group in the labour market, and the principle of non‑discrimination on grounds of gender was introduced in the programmes and measures for employment. At the same time, the Federal Employment Service, together with the Foreign Trade Chamber of Bosnia and Herzegovina — Institute for Education (ECOS) and the Foundation for Social Inclusion, has been funded and implemented the Project “Social, Commercial and E-inclusion of women 40+”. The aim of the Project was to raise the competence of women in the labour market, to enable them to actively search for jobs and self-employment, and to increase the involvement of women in the labour market.

4.7.At the suggestion of the Club of Women Parliamentarians of the Federation of Bosnia and Herzegovina, in 2014 the funds were provided for the establishment of a revolving fund for loans to women farmers in rural areas with the aim of rural development. It is anticipated that funds approved from the revolving fund are free of interest with minimal cost and longer repayment period. Every year, these funds could be magnified and eventually we would have a significant amount of funds directed to the development of agricultural goods in rural areas and employment of women as carriers of the agricultural development.

4.8.During the implementation of active employment policies, employment services have paid special attention to programmes of support for acquiring working experience as a trainee, to support to the employment in agriculture, to acquiring of new knowledge and working experience for scarce jobs in the labour market, to co‑financing of self-employment and to support to networks of social security and employment. As the target groups were selected young persons, older age, long-term unemployed persons, returnees and Roma, including a large number of women. About 65 per cent of the programme relates to the programmes of co-financing of new employment and self-employment. Data are not disaggregated by gender but in 2013, programmes of active employment policies in Bosnia and Herzegovina have covered 19.249 persons.

5. 34 (b) Take effective measures to integrate disadvantaged groups of women and women working in the “grey economy” in the formal labour market;

5.1.As far as we know, currently there is neither strategy nor a programme for implementation of effective measures for integration of vulnerable groups of women from the informal to the formal labour market in Bosnia and Herzegovina and the financial crisis has contributed to the rise of the “grey” economy.

34 (c) Closely monitor the working conditions of women in the informal sector and those employed with temporary contracts, by strengthening labour inspections, and ensure their access to social services and social security, and consider ratifying ILO Convention No. 189 (2011) concerning decent work for domestic workers;

5.2.In 2012, Bosnia and Herzegovina has signed the Decent Work Countr y Programme (DWCP) for the 2012- 2015 period with the International Labour Organization (ILO). Through the implementation of this Program, as an area of key importance, it has been recognized the need to formalize the informal economy. The workshop was organized within the Program, two reports prepared and a campaign to raise awareness of the informal economy was launched with the greater participation of women. One of the expected results of this programme provides for reinforcement of the effectiveness of the system of labour inspection in order to promote dignified working conditions by providing information, advice and law enforcement. In order to achieve this result, in 2015 the development and implementation of guidelines and work plans on undeclared work in selected areas are envisaged.

5.3.In accordance with procedures, ILO Domestic Workers Convention No. 189 and Domestic Workers Recommendation No. 201 have been submitted to the competent authorities of entities and Brcko District of Bosnia and Herzegovina for consideration. Among other, we have received observation of the above mentioned authorities in which was noted that the ratification of the Convention and acceptance of the Recommendation requires significant corrections of legislation and introduction of new working practices so they have postponed the ratification or acceptance of these instruments in Bosnia and Herzegovina.

6. 34 (d) Adopt effective measures, including temporary special measures, to eliminate occupational segregation both horizontal and vertical, based on stereotypes related to gender;

6.1.According to the Labour and Employment Agency of Bosnia and Herzegovina, during the implementation of projects in the past, it has been proven the division on men’s and women’s work, for example, nursing is usually performed by women, and the lather, insulation worker, drivers, construction workers are usually jobs for men. It does not mean that this prejudice, during the enrolment in secondary schools, cannot be corrected and adjusted to the labour requirements in our and foreign labour market.

7. 34 ( e) Develop a confidential and safe system for filing complaints related to gender-based discrimination and sexual harassment at the workplace, and ensure that victims have effective access to such means of redress;

7.1.Bosnia and Herzegovina Law on Prohibition of Discrimination provides that every person who considers to be discriminated shall be able to seek protection of his/her rights through existing judicial and administrative proceedings. The burden of proof stands at the alleged offender who shall have a duty to prove that the principle of equal treatment or prohibition of discrimination has not been breached. Central institution competent for protection from discrimination is the Ombudsman for Human Rights of Bosnia and Herzegovina (hereinafter: Bosnia and Herzegovina Ombudsman) which, in accordance to the Law, have broad powers to protect individuals and groups from actions that the Law defines as discriminatory. The Department for Elimination of All Forms of Discrimination is established within the Bosnia and Herzegovina Ombudsman and an electronic case management system introduced, by which a database of cases of discrimination has been established.

7.2.Any natural or legal person claiming a legitimate interest, regardless of nationality, race, sex, religion and nationality, may complain to the Bosnia and Herzegovina Ombudsmen. Complaining to the Bosnia and Herzegovina Ombudsmen shall not entail any criminal, disciplinary or any sanctions against its applicant. The complaint shall be filed in writing, by mail, fax, e-mail or personal delivery. The complaint should contain a short description of events, facts or decisions that led to the filing of an appeal. Any complaint must be signed and submitted by the person concerned, or an authorized representative.

7.3.Court and other bodies which are conducting proceedings are obliged to promptly take action in the proceedings and to ensure that all claims about discrimination are examined as soon as possible. When all requirements are based on the same factual and legal basis, complaints may be submitted together (cumulatively) in one lawsuit on which should be decided in a civil action, if all claims are interrelated and if the same court has jurisdiction over each of those requests.

7.4.When comparing statistics from previous years, it is evident that mobbing is increasing to which contributes the difficult economic situation, high unemployment, poorly regulated labour market and the lack of capacity of relevant inspections. Citizens usually addressed the Ombudsman because of a hostile environment in the workplace, insults and degradation of the subordinate officers, selective and incomplete realization of labour rights in respect of annual leave, the right to vocational training and remuneration. Men addressed more than women, which does not mean that women are less likely to be victims, but they rarely decide to start the proceedings for protection from discrimination even though they are discriminated, at least to the same extent, in the form of mobbing, as well as other kinds of discrimination at the workplace.

7.5.The High Judicial and Prosecutorial Council of Bosnia and Herzegovina has adopted Guidelines for the Prevention of Sexual and Gender-based Harassment within the Judicial Institutions of Bosnia and Herzegovina. Guidelines contain a set of measures and preventive actions undertaken within the judicial institutions of Bosnia and Herzegovina in order to prevent sexual and gender-based harassment. Members of the judiciary (judges, court associates and prosecutors) and employees of judicial institutions in Bosnia and Herzegovina are obliged to respect and abide by the principle of gender equality, and to ensure that their actions and behaviours do not constitute sexual and gender-based harassment.

7.6.The Gender Equality Agency of Bosnia and Herzegovina and the Ministry of Human Rights and Refugees have drafted the Information on mechanisms for effective prevention and protection against harassment based on gender and sexual harassment in the workplace in the institutions of Bosnia and Herzegovina, which is in the adoption procedure.

7.7.In its general provisions, the Law on Civil Service in Administrative Bodies of Brcko District of Bosnia and Herzegovina prohibits discrimination and privileges, meaning that civil servant or employee is not allowed to discriminate and privilege citizens on the basis of age, gender, ethnic, racial, ethnic and territorial affiliation, entity citizenship, language, political or religious belief; social, marital or extra-marital status or any form of discrimination.

8. 34 (f) Enhance the availability and affordability of childcare facilities to help women exercise their right to work in order to increase women’s access to the labour market;

8.1.In order facilitate access to the labour market for young women, it is necessary to provide and facilitate access to care facilities for children or to pre-school institutions. This not relates to the mother of children only, but to the grandmothers as well which are excluded from the labour market, because in many cases they are taking care of their grandchildren so that their mothers could go to work. In recent years, it has been noted a rise of the number of pre-schools institutions as well as the number of children. However, disparity is notable in territorial coverage, the creation of new institutions and the number of children in such institutions. Although the number of newly established institution is accompanied by an increase of the number of employees, it can be seen an increase in the number of children to one teacher, which is not a desirable trend.

9. 34 (g) Ensure that the implementation of the framework law regulating the social sector results in the harmonization of pregnancy and maternity protection in the State party in order to guarantee paid maternity leave for all women;

According to the unofficial data and research, about 47 per cent of mothers in the Federation of Bosnia and Herzegovina do not receive any compensation, and, besides territorial, there is a form of discrimination based on the employment sector (public and private). For many years, a number of institutions and non‑governmental organizations are indicating that the right of employees to maternity or parental leave is not a right included in the social protection system, but the social security (insurance). In order to harmonize the rights and protection of families and children, the Federal Ministry of Labour and Social Affairs appointed a Working Group to draft “Public policies on protection of families and children in the Federation of Bosnia and Herzegovina”, as the basis for a new law on protection of families and children in which the rights in this area will be harmonized throughout the territory of the Federation of Bosnia and Herzegovina.