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LEGAL PROVISION - UNICEF Powered By Docstoc
					      REVIEW OF LEGISLATION, POLICIES AND PRACTICES:
    LEGAL PROVISION ON ACCESS OF ADOLESCENTS TO INFORMATION
      AND HEALTH SERVICES RELATING TO HIV/AIDS AND STI IN B&H




Study coordination: UNICEF Bosnia and Herzegovina

Report prepared by: Ljiljana Krunić-Zita, LLB

Design: kurtplasto.ba

Sarajevo, Banja Luka, November 2007

Opinions expressed in this publication are the opinions of the author and of those
who contributed to this analysis and do not reflect UNICEF’s opinions, standpoints
and policies.




2
TABLE OF CONTENTS

                                                                      Page

    -   Abbreviations and Definitions                                   4
    -   Executive Summary                                               5

    1. Introduction                                                     6
    1.1. Is BiH fertile ground for the spread of HIV/AIDS and STIs?     9

    2. Legal Framework                                                 11
    2.1. The State of BiH                                              11
    2.2. Federation of BiH                                             21
    2.3. Constitutions of Cantons - Concerning Human Rights            26
    2.4. Republika Srpska                                              29
    2.5. Brčko District                                                33
    2.6. Conclusions and Assessment of Legal Provisions                35

    3. Brief Review of the Practice                                    37
    3.1. Interviews with Physicians                                    37
    3.2. The Interview at a Center for Social Work                     41
    3.3. The Interview with a Judge                                    42
    3.4. Interviews in NGOs                                            42
    3.5. Publications                                                  43
    3.6. The Mass Media                                                44
    3.7. Research among Adolescents and Young Adults                   45
    3.8. Conclusions and Assessment of the Practice                    47

    4. Recommendations                                                 49




3
ABBREVIATIONS AND DEFINITIONS

HIV - Human immunodeficiency virus

AIDS - Acquired immune deficiency syndrome (loss of immune defense capability, the final
stadium of an HIV infection)

STI- Sexually transmitted infection

HAART - Highly Active Antiretroviral Treatment (an effective treatment by a combination of
three classes of medications in order to prevent multiplication of HIV and enable
recuperation of the immune system)

HIV BLOOD TESTING - Positive if HIV antibodies are found and negative if no antibodies
are detected. If the finding is negative, this does not mean that the person is not infected; it
is possible that the blood was tested during a period called a “window period”, during which
the virus is present in the blood, but the organism has not yet managed to create antibodies
detectable by the test. To achieve reliable test results, the testing should not be done within
a period shorter than six weeks from the latest exposure to a potential infection risk. If this
period is shorter than six weeks, the testing should be repeated.

VOLUNTARY CONFIDENTIAL COUNSELING AND TESTING – a method whereby a
professional and a person tested for HIV are working together to adjust solutions to prevent
an HIV infection for each case of an increased risk.

HARM REDUCTION PROGRAM (e.g. EXCHANGE OF NEEDLES AND OTHER
EQUIPMENT for injection drug users – IDUs – organizing a free and anonymous distribution
of syringes, needles and other equipment for injection drug users, and receipt and
destruction of used syringes and needles in special centers) – this is a set of measures and
procedures aimed at reducing the possibility of creating greater harm, such as an infection
by HIV or another agent in persons whose behavior exposes them to a potential risk.

MSM – Men who have sex with men

WHO – World Health Organization

WCRP – World Conference of Religions for Peace

DEI – Directorate for European Integration

EUICC - Euroinfo Correspondence Center with the Foreign Trade Chamber of BiH

EUROINFO CENTER - Euroinfo centers were founded in 2006/07 in Sarajevo, Tuzla,
Mostar, Brčko and Banja Luka with the financial support of the European Commission
Delegation to BiH.




4
EXECUTIVE SUMMARY
The primary aim of this analysis is to make a cross section of the present legislation with
respect to adolescents’ access to health care, services and information related to the
protection against HIV infection and other STIs. This document also analyses the practice
with respect to the implementation of the present legislation in the territory of BiH. The
analysis of legislation is structured according to the administrative division of the country into
two entities (the Republika Srpska and the Federation of BiH, which is further divided into 10
Cantons) and the Brčko District.
This has led us to analyze all relevant legislation at the levels of the state, entities, Brčko
District, as well as Cantonal Constitutions with respect to the protection of fundamental
human rights.
Generally speaking, the legislation analyzed guarantees the highest standard of the
protection of human rights and of the rights relevant for this analysis, such as the rights to
health care, privacy and information.
At the same time, however, the analysis of the practice has shown that this practice is not
consistent in all parts of BiH, which in itself leads to discrimination. Differences are present
not only between the entities and the District, but also between cantons in one of the
entities.

The short review of the non-governmental sector in this filed shows that these organizations
are not networked in the system and that people are often unaware of their existence.

We have also analyzed several publications dealing with HIV/AIDS and STIs, which,
however, are not distributed to the youth in large numbers.

Finally, the end of this analysis provides recommendations to authorities and institutions of
authority. These recommendations include the following: to harmonize legislation and
practice across the entire country; to enact the Law on Rights of Patients in BiH and the
Strategy to Combat Drug Abuse; to start implementing the HIV/AIDS Prevention and
Combat Strategy, which has already been adopted; to decriminalize prostitution; to make
decisions at the level of the highest authority in the country, which would enable some
institutions at the state level (the Council and Foundation for Children) to continue working.
These recommendations also indicate the need to focus the activities of all these
institutions, in cooperation with the mass media and religious officials, on raising awareness
among the general public about the rights of children and young people and on combating
prejudice concerning reproductive and sexual health, and in particular the right to sexual
orientation, which is a fundamental human right.

Every person has the right to health education that will help him/her make informed choices
about personal health and about the health services available. This education should
include information on healthy lifestyles and on methods of prevention and early detection of
illnesses.1


Everybody is personally responsible for his/her own health, while physicians have an
obligation to participate actively in educational efforts.




1
    Principle 9 of the World Medical Association Declaration on the Rights of the Patient


5
1. INTRODUCTION
According to World Health Organization (hereinafter: WHO) data, HIV/AIDS and STIs are
the most serious infections affecting mankind. HIV/AIDS has demographically changed all
countries in which it is widespread. In light of the devastating and rapid spread of HIV/AIDS
and STIs, we must agree with the assessment of WHO that this infection does not recognize
any borders and therefore presents a global health and social problem today. In May 2007,
WHO and UNAIDS issued new guidance on voluntary HIV testing and on the benefits of
counseling.

In June 2007, an AIDS Conference was opened in Durban, South Africa, in which scientists
from all over the world tried to establish the main guidelines to combat AIDS.
An estimated 39.5 million people are living with HIV/AIDS; one fourth of the infected people
are younger than 25. Of this number, one third are women aged 15 to 24.2 According to
numerous alarming pieces of information issued by the UN, children are particularly affected
by this infection and they are faced with an AIDS pandemic.3 Many children are infected
because their parents had been infected and had died of AIDS. This further aggravates the
tragedy of these children by making them infected children without parental care.

The Joint United Nations Programme on HIV/AIDS (UNAIDS) was established in January
1996. UNAIDS is a cosponsored program which brings together ten international
organizations (UNICEF, UNDP, UNFPA, UNESCO, WHO, UNHCR, ILO, the World Bank,
WFP and UNODC)

“UNAIDS has a principal task of initiating a wide responsibility for global health and
developing challenges in relation to HIV/AIDS. By developing a partnership in action within
the UN system and individual members states, UNAIDS provides critical and essential
instructions for international actions and encourages significant new initiatives at the
national level.”4

HIV/AIDS infections have been a focus and an object of concrete activities in the EU public
health sector since the late 1980s. Before this time, the European continent had managed to
successfully avoid this disease.5
The global goal of resolving this issue requires global action. “When the world is collectively
at risk, defense becomes a shared responsibility of all nations.”6 According to WHO, the
global goal is defined as “universal access to comprehensive prevention programs,
treatment, care and support for people infected with HIV.” It can be achieved by 2010,
provided that the relevant national programs, international organizations, civil society,
community and individuals implement the prevention and care strategy at the level most
suited to combating the infection. To achieve a full success, this means not only having
ambitious national programs, but also attaining global mobilization and an increased
responsibility of all involved in the creation and implementation of these programs.
Bosnia and Herzegovina is a part of these processes. The country is involved in the South-
Eastern Europe Health Network (SEEHN), established in 2001 as part of the Stability Pact,
and in a series of activities related to the HIV/AIDS issue. Representatives of BiH have
taken part in numerous meetings (Dubrovnik, Ljubljana)



2
  These data are for 2006, published in April 2007 by WHO
3
  A statement of UNICEF Executive Director.
4
  Kofi A. Annan, former Secretary-General of the United Nations


5
    http://ec.europa.eu/helath/ph_threats/com/aids_en.htm
6
    A statement of the WHO Director-General


6
and research concerning the improvement of public health and all other issues reflecting on
HIV/AIDS and STIs in this part of Europe. A BiH representative was also involved in the
making of a publication entitled “Blood services in South-Eastern Europe.” This publication
provides a political and structural review of the country and an exhaustive review of the
blood services situation (legal framework, transfusion services, the method of donating and
testing of donated blood, promotion of blood donations, a dedicated budget for the blood
service, etc.) for the FBiH, RS and Brčko District all separately.7

In 2005, BiH applied with the Global Fund and was granted a preliminary five-year donation
intended to implement numerous measures aimed at creating and improving the national
system of HIV/AIDS protection and treatment. The main goal of this project is to ensure a
required system of services and to raise awareness and education available to end-users
across BiH. The United Nations Development Program (UNDP) has been designated the
principal recipient and the agencies partaking in the project are: Ministry of Civil Affairs of
BiH, Ministry of Health of FBiH, Ministry of Health and Social Protection of RS, numerous
NGOs which were hired as contractors for different project activities. UNICEF and other UN
agencies in BiH are supporting the implementation of different activities in this project to the
extent covered and permitted by their competence and capacities.

In line with the UNICEF’s terms of reference, this review will focus on the rights to social
protection and to information of adolescents in BiH in general, including those belonging to
sub-populations at an increased risk of HIV infections or STIs. This analysis will also treat
the issue of access to information and services by persons infected with HIV. Given that
such analysis involves consideration of human rights, all analyses of legal provisions will be
made from this perspective.

As requested by UNICEF, the target group in this study was first and foremost the
adolescents, defined by WHO as persons between 10 and 19 years of age. Considering the
period of development and sexual maturity of persons in this age group, there is a need to
collect such information in order to steer future programs and interventions.
UNICEF’s mandate is protection of children, i.e. persons aged between 0 and 18, and this
meant it was only logical to also review the population of children according to the definition
from the Convention on the Rights of the Child (hereinafter: the Convention).
Given WHO’s definition of youth, it made sense to increase the age limit from 18 and 19 to
24 years of age.
Finally, considering the legal provisions in FBiH on the right to health insurance for persons
who are attending schools/universities on a full-time basis, the upper age limit was
increased to 26 years of age.
An additional argument to reduce the lower age limit of 10 years of age was that the
Convention has the legal force of a constitutional norm in BiH, which means that the
Convention applies directly and the state has an obligation to provide for the highest
standards of protection for child rights, health and education, as well as the right to express
his or her own views, provided the child is capable of doing so given the age and maturity of
the child, in all matters affecting the child (Article 12 of the Convention) and the right to
information (Article 13).

There is another additional reason to move the upper age limit to 26 years of age: the Law
on Health Insurance in the FBiH stipulates that full-time students under age

26 may have health insurance arising from their status as students, unless they are insured
through their parents.

7
 Dubrovnik Pledge; „Blood services in South-Eastern Europe“
http://ec.europa.eu/helath/ph_international/seehn_en.htm


7
The laws in the RS and the Brčko District do not provide for this right. Primary/high school
and university students may be insured as full-time students by age of 26 only as members
of an insured family.

However, even though this right has been established under an entity-level regulation in the
FBiH, it is not exercised equally in all cantons. The extent to which the right is exercised
depends on the canton in which the student lives, which is an obvious instance of
discrimination. For example, students are able to exercise this right in the cantons of
Sarajevo and Bosnian-Podrinje, but not in Herzegovina-Neretva.

UNAIDS/WHO working group on global HIV/AIDS and STI surveillance believes the 15 to 49
age group is the most sexually active, which would further support the raising of the upper
age limit to 26 years of age.
Furthermore, this analysis includes the right to social protection of the refugee population in
BiH.

When considering the issue of protection of human rights in general, including persons
infected with HIV/AIDS and STI, we could reasonably say that all these age group divisions
are artificial and irrelevant because the rights being considered are inseparable from the
guaranteed human rights, which are universal and natural and are inherent from birth.
It is precisely this aspect of human rights that is stressed by WHO recommendations and
guidance on HIV/AIDS testing and the recommendations of the Council of Europe on safety
of the patient and prevention in health protection, hospital reorganization and the new
approach of institutions and community to health care. All these recommendations indicate
the connection between the protection of human rights and public health, because it is an
unfortunate and irrefutable fact that many infected persons are discriminated against and
denied their human rights and freedoms.

It is this protection of human rights that is treated by the strategic goal 3 of the BiH HIV/AIDS
Prevention and Combat Strategy 2004-2009, adopted by the Council of Ministers in 2004.
This strategic goal is “to create a legal framework for the respect and protection of human
rights and ethical principles for persons who are living with HIV/AIDS.”
Undeniably, the protection of human rights is as important as the protection of public health,
and the extent to which they are mutually connected and interdependent directly reflects on
the success of all efforts to combat HIV and STIs. The European Commission offers a range
of programs in the public health sector focusing on three areas: improvement of citizen
health insurance; improvement of health through well-being and solidarity; creation and
spread of health knowledge (State Action Program for Health 2007-2013).8

This review provides information on the following:
1 – Legislation on the national, entity and district levels, and cantonal constitutions regarding
the protection of human rights and fundamental freedoms, especially the right to life, the
right to health and social protection and the right to privacy and information. These rights are
potentially insufficiently accessible to adolescents, while persons infected with HIV often
experience violation of these rights;
2 – Some documents of UNICEF, WHO, the Council of Europe and EU, chosen according to
the nature of this analysis;
3 – Opinions of experts from some health institutions in BiH and NGOs which work on
prevention and counseling services for adolescents and persons infected with HIV and STIs;
4 – A few brochures intended to provide information on HIV/AIDS and STIs, which are not
as widely used in the BiH education system as they should be.


8
    http://ec.europa.eu/health/ph_overview/pgm2007_2013_en.htm


8
Based on this information, recommendations are given to competent authorities in order to
implement measures aimed at creating and improving the national system for HIV/AIDS
protection and treatment.

This analysis also benefited from the involvement of high school/university students
gathered in EUROINFO Centers in Banja Luka, Brčko and Mostar, who took part by filling in
the questionnaires dealing with information on HIV/AIDS and STIs and the possibilities for
anonymous and free-of-charge testing and treatment.


1.1. Is BiH fertile ground for the spread of HIV/AIDS and STIs?
Between 1986 and 2006, a total of 143 persons were registered as infected with HIV in BiH.9
Of this number, there were two male persons under the age of 18, one of which has died.
Between the ages of 19 and 26, 16 persons have been registered, of which 14 are males
and 2 females. Of these 16 infected, seven persons have died - five males and two females.

Data on STI are virtually non-existent in the Public Health Institutes of the FBiH and the RS.
In the period between 2004 and 2006, the Public Health Institute of the FBiH, which collects
data for the entire BiH, registered five persons infected with syphilis and one infected with
chlamydia under 24 years of age.

Compared to other countries, including the neighboring Republic of Croatia, these data rank
Bosnia and Herzegovina as a country with low HIV incidence and prevalence. This is
undoubtedly a significant advantage; however, BiH is not and cannot be reasonably
excluded from the risk of infection spread. In addition, the country may, in specific ways,
provide fertile ground for the spread of these infections.
It has already been noted that HIV does not recognize any borders, and BiH is specific for
its recent war that caused migration, impoverished its population and destroyed the safety
and availability of the health and social systems to all citizens (which had been centralized
and well-organized before the war). Migration of population in the country was not due only
to the displacement of local population and their movement within the country, but also to
porous state borders which were rather open to uncontrolled crossings. It was possible for
persons without any documents to freely enter the country, especially during the chaos of
war and unfortunately for a number of years after the war. They were able to freely settle, or
stay for a certain period, or transit through the territory of BiH. This problem remains
unresolved fully to the present day in spite of the officially well-organized state border
service.
It is most often that scandals reveal the existence of illegal persons. For instance, a young
woman dies of AIDS or is found beaten and left in a ruined house and is later identified as
having stayed illegally in the country for a certain period, working in a popular night club. In
another instance, a funeral of a young man who died of an overdose attracts a
conspicuously large number of members of an unknown religious sect, which in itself casts
doubt on the lawfulness of their activities and registration in
accordance with the Law on Religious Freedom and the Legal Status of Churches and
Religious Communities in BiH.10

Every serious country is trying to develop a range of mechanisms to control the safety of its
citizens. These mechanisms are provided for in legislation and the structure of the country
provides a basis in the form of authorities to implement this legislation and closely monitor


9
    According to data of the Public Health Institute of FBiH
10
    The Law was published in the Official Gazette of BiH 5/04


9
such implementation, intervening whenever legislation is not being implemented. Due to its
structure and its division into entities, and the further division of one of the entities into 10
cantons, BiH lacks efficient mechanisms that would guarantee a universal practice and
comprehensive protection of the rights and of the life and health of its citizens.

These issues will be discussed in more detail in the chapter on Legal Framework.

The EU Integration Strategy of Bosnia and Herzegovina, adopted by the Council of
Ministers, states that “health care rights exceed fiscal capacities”. In other words the rights
have been provided for by law, but in practice, due to the lack in capacities, these rights
cannot be exercised. Furthermore, the Strategy states that the health sector in both entities
is underdeveloped and lacks adequate funding; not all citizens enjoy health coverage; and
numerous rural areas do not have effective medical care.11

Since April 1992, BiH has been a member of the United Nations as well as a member of the
Council of Europe.
BiH became the Council of Europe’s 44th full member and has accepted high standards of
human rights protection and has acquired a status of a party before the European Court of
Human Rights in Strasbourg.

In the past few years, the European Commission Delegation to BiH has increasingly
supported the activities of governmental (DEI and EUICC Correspondence Center with the
Foreign Trade Chamber) and nongovernmental (EUROINFO Centers and EUROINFO
Points) sectors in BiH by informing the citizens on European integrations, which is a process
requiring a comprehensive harmonization of legislation in order to achieve European
standards in all fields of law.
Harmonization of BiH legislation with the founding principles of the EU relates in particular to
social policies and safety measures in public health, education and treatment of youth.12




11
     Page 65 of the EU Integration Strategy of Bosnia and Herzegovina, DEI 2006
12
     EU Integration Strategy of Bosnia and Herzegovina, DEI 2006


10
2. LEGAL FRAMEWORK
Bosnia and Herzegovina has a complex state structure established under its constitution,
which is a precedent in both the theory and practice of constitutional law.13
In legal theory, the Constitution of Bosnia and Herzegovina is an exclusively internal legal
act in material, formal and procedural respects. The Constitution is a general act whose
scope includes the organization of public authority and safeguarding of individual and
collective rights and freedoms.

The Constitution is also an integral part of the General Framework Agreement for Peace in
Bosnia and Herzegovina,14 which constitutes Annex 4 to the Agreement. From this
perspective, the Constitution of BiH is an international legal act because it is an integral part
of an international agreement. In addition to the Constitution of BiH, both entities have their
own constitutions (Federation of BiH and the Republika Srpska), as do the 10 cantons in the
FBiH. The Constitution of BiH and entity constitutions define the competences of authorities
of the state, entities and the FBiH cantons.
Of special significance in BiH is the European Convention for the Protection of Human
Rights and Fundamental Freedoms and its Protocols (hereinafter: the European
Convention), whose application has priority over all other law, which means that it has the
legal force of a constitutional norm (Article II.2). Since the European Convention is
specifically referred to in the body of the Constitution of BiH, it might appear unclear whether
the other agreements on human rights listed in Annex I have the legal force of a
constitutional norm. However, Annex I lists the highest standards for the protection of
human rights and is entitled: “Additional Human Rights Agreements to be Applied in Bosnia
and Herzegovina”, and therefore they should also be considered an integral part of the
Constitution, and hence having the legal force of a constitutional norm.

Considering the division of competences, this review will present the legislation at the levels
of the state, entities/canton and the District from the following two perspectives:

1. Protection of the rights of adolescents and young people to have access to health
protection and information relevant for their health to the extent to which the constitutions
and relevant legal framework guarantee human rights and fundamental freedoms for all the
citizens. At the same time, attention will be drawn to the legislation protecting the rights of
persons who are living with HIV and STIs.
We must stress that the Constitution of BiH does not include an obligation for the entity laws
to be harmonized with the laws of BiH or that they cannot be in conflict with such laws.
However, in an indirect way, the provisions on the Constitutional Court of BiH leave room to
conclude that the Constitution of BiH defines that the entity laws must be harmonized with
the laws of BiH or that they cannot be in conflict with such laws.

2. The degree of harmonization of BiH legislation that concerns the rights of adolescents
and persons who are living with HIV and STIs with international and European instruments
for the protection of human rights.


2.1. The State of BiH
THE CONSTITUTION OF BIH - the preamble notes the Constitution is inspired by the
Universal Declaration of Human Rights, the International Covenants on Civil and Political
Rights and on Economic, Social and Cultural Rights, and the Declaration on the Rights of



13
     „Constitutional Law“ Prof Nurko Pobrić, PhD
14
     Dayton Accords, reached on 25 November 1995 in Dayton, and signed on 14 December 1995 in Paris


11
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, as well as other
human rights instruments.

Based on this, Article II of the Constitution requires the state and both entities to ensure the
highest level of internationally recognized human rights and fundamental freedoms.
Article II(3) enumerates the human rights and fundamental freedoms enjoyed by all persons
within the territory of BiH. This enumeration includes the following rights that are most
relevant for the purposes of this review: the right to life; the right to liberty and security of
person; the right to private and family life and home; and the right to education. The
Constitution guarantees that all enumerated rights and freedoms shall be secured without
discrimination on any ground such as sex, race, religion, language, etc.

The health and social policies are the responsibility of the entities because they “are not
expressly granted by this Constitution to the institutions of BiH.”

UNIVERSAL DECLARATION OF HUMAN RIGHTS15; Article 1 of the Declaration stipulates
that all human beings are born free and equal in dignity and rights, and that they are
endowed with reason and conscience and should act towards one another in a spirit of
brotherhood. Everyone has the right to life, liberty and security of person (Article 3); all are
equal before the law and are entitled without any discrimination to equal protection of the
law (Article 7). Everyone has the right to a standard of living adequate for the health and
well-being of him/herself and of his/her family, including medical care and necessary social
services, the right to security in the event of sickness and disability.

INTERNATIONAL COVENANTS ON CIVIL AND POLITICAL RIGHTS AND ON
ECONOMIC, SOCIAL AND CULTURAL RIGHTS16 require all states to ensure the equal
right of men and women to the enjoyment of all economic, social and cultural rights set forth
in the Covenant. In accordance with this, Article 9 stipulates that everyone has the right to
social security, while Article 10 stipulates the obligation to accord the widest possible
protection and assistance to the family, which is “the natural and fundamental group unit of
society”. The state should take “special measures of protection and assistance on behalf of
all children and young persons without any discrimination for reasons of parentage or other
conditions.” The states must recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health.
The state has to take steps necessary for the prevention, treatment and control of epidemic,
endemic and other diseases and the creation of conditions which would assure to all
medical service and medical attention in the event of sickness (Article 12(2)(c) and (d)).

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND
FUNDAMENTAL FREEDOMS17 requires from the state to secure to everyone the rights and
freedoms defined in the Convention (Article 1), which includes the following: right to life
(Article 2); prohibition of slavery and forced labor (Article 4); right to liberty (Article 5). Article
5 is interesting to analyze because it lists possible cases of deprivation of liberty, including
underage persons, but only for the lawful detention of a person, for instance in order to
prevent spreading of infectious diseases or for drug addicts.

The Convention guarantees the right to have respect for private and family life and prohibits
public authority from interfering with the exercise of this right except such as is necessary for
the protection of health or morals, or for the protection of the rights and freedoms of others


15
   ratified – Official Gazette of RBH 15/92
16
   ratified – Official Gazette of FBiH 1/1994
17
   ratified – Official Gazette of FBiH 1/1994


12
(Article 8). The Convention prohibits discrimination on any ground with respect to the
enjoyment of rights and freedoms (Article 14).
As noted earlier, Article 2.1 of the Constitution of BiH defines that the European Convention
for the Protection of Human Rights and Fundamental Freedoms and its Protocols supersede
all other regulations and are directly applied in BiH, having priority over all other law.

CONVENTION ON THE RIGHTS OF THE CHILD18 defines the child as every human being
below the age of 18 years unless under the law applicable to the child, majority is attained
earlier (Article 1). Under Article 2, states are required to respect and ensure the rights set
forth in the Convention to each child within their jurisdiction without discrimination of any
kind, irrespective of the child's or his or her parent's or legal guardian's race, sex, social
origin, disability, birth or other status. Article 3 of the Convention requires that for states, in
all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of
the child shall be a primary consideration. Article 6 recognizes the inherent right to life of
every child and the security to the maximum extent possible of the survival and development
of the child.
The child has the right to express his or her views freely in all matters affecting the child, in
accordance with the age and maturity of the child (Article 12). The child also has the right to
information (Article 13); the right to privacy (Article16); the right to have access to
information and material, especially those aimed at the promotion of the child’s social,
spiritual and moral well-being and physical and mental health. To this end, the state is
required to encourage the mass media to disseminate such information and material (Article
17). The state is required to take all appropriate legislative, administrative, social and
educational measures to protect the child from all forms of physical or mental violence, injury
or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual
abuse. To implement such protective measures, the state is required to carry out different
procedures and programs (Article 19). A child temporarily or permanently deprived of his or
her family environment is entitled to special protection and assistance, and the state is
required to ensure alternative care for such a child (Article 20). A mentally or physically
disabled child should enjoy a full and decent life in conditions which facilitate the child's
active participation in the community. The state recognizes the right of the disabled child to
special care and shall encourage and ensure the extension of such assistance free of
charge, whenever possible. In this respect, the state is required, in the spirit of international
cooperation, to promote the exchange of appropriate information in the field of preventive
health care and of medical, psychological and functional treatment of disabled children,
including access to information concerning methods of rehabilitation (Article 23). The state
recognizes the right of the child to the enjoyment of the highest attainable standard of health
and medical protection and must take appropriate measures to diminish mortality, ensure
the provision of necessary medical assistance and health care, ensure that all segments of
society are informed and supported in the use of basic knowledge of health, etc. (Article 24).
The child has the right to a periodic review of health/treatment (Article 25) and the right to a
standard of living adequate for the child’s physical, mental, spiritual and moral development
(Article 26). The states need to direct the education system to the development of the child’s
personality, talents and mental and physical abilities to their fullest potential, and to the
development of respect for human rights and fundamental freedoms (Article 29). Article 32
recognizes the right of the child to be protected from economic exploitation and from
performing any work that is likely to be hazardous or to interfere with the child's education,
or to be harmful to the child's health or physical, mental, spiritual, moral or social
development. The state is required to take appropriate



18
     ratified – Official Gazette of FBiH 1/1994


13
measures to protect children from illicit use of narcotic drugs and psychotropic substances
(Article 33) and to take appropriate measures to prevent the child from all forms of sexual
exploitation and sexual abuse (Article 34). To ensure recovery and reintegration of the child
in an environment which fosters health, self-respect and dignity of the child, the state shall
take all appropriate measures to promote physical and psychological recovery and social
reintegration of a child victim of any form of neglect, exploitation, abuse, etc. (Article 39).
The state is required to report periodically to the UN Committee on the Rights of the Child
on all measures it has adopted (Article 44).

INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL
DISCRIMINATION19 guarantees the right of everyone, without distinction as to race, to
public health, medical care, social security and social services (Article 5(e)(iv)).

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND OPTIONAL
PROTOCOLS20 requires from the state to ensure the equal right of men and women to the
enjoyment of all rights set forth in the Covenant (Article 3). The Covenant stipulates that
every human being has the inherent right to life, which shall be protected by law (Article 6).
No one shall be subjected to arbitrary or unlawful interference with his/her privacy, family,
home or correspondence, nor to unlawful attacks on his/her honor and reputation (Article
17). Every child shall have the right to such measures of protection as are required by
his/her status as a minor.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST
WOMEN21 condemns discrimination against women in all its forms. The state is required to
embody the principle of the equality of men and women in their national constitutions or
other appropriate legislation and to ensure the practical realization of this principle (Article
2). The state is required to take all appropriate measures to eliminate prejudices based on
the idea of the inferiority of women (Article 5); to suppress all forms of traffic in women and
exploitation of prostitution of women (Article 6); to ensure equal rights in education (Article
10); to eliminate discrimination against women in the field of health care (Article 12); to
eliminate discrimination against women in rural areas, in particular to ensure access to
adequate health care facilities - including information, counseling and services in family
planning - to the benefits of social programs, education, and enjoyment of adequate living
conditions, particularly in relation to housing and sanitation (Article 14); and to eliminate
discrimination against women in deciding on family planning and to specify a minimum age
for marriage (Article 16).

CONVENTION ON HUMAN RIGHTS AND BIOMEDICINE, ADDITIONAL PROTOCOLS22
The intention of this Convention is to protect the dignity and identity of all human beings and
to guarantee everyone, without discrimination, respect for their integrity and other rights and
fundamental freedoms with regard to the application of biology and medicine. Parties to the
Convention shall take in their internal law the necessary measures to give effect to the
provisions of this protection. Parties to the Convention are required to take all appropriate
measures with a view to providing equitable access to health care of appropriate quality.
Where, according to law, a minor does not have the capacity to consent to an intervention,
the intervention may only be carried out with the authorization of his or her representative or
an authority or a person or body provided for by law. The opinion of the minor shall be taken
into consideration in proportion to his or her age and degree of maturity (Article 6(2)). Only




19
   ratified – Official Gazette of FBiH 1/1994
20
   ratified – Official Gazette of FBiH 1/1994
21
   ratified – Official Gazette of FBiH 1/1994
22
   ratified by BiH in 2006


14
in cases when because of an emergency situation the appropriate consent of the
parent/custodian cannot be obtained, an intervention may be carried out immediately for the
benefit of the health of the individual concerned.
Article 10(1)(2) guarantees the right to respect for private life in relation to information about
his or her health, as well as the right not the be informed about his or her health if the patient
wishes so. Due to the nature of rights being protected, any legal protection must be taken as
a matter of urgency.

DECISION ON THE POSITION OF THE RED CROSS SOCIETY OF BiH – adopted at the
session of the Council of Ministers of BiH held on 07 September 200023 (the constitutional
position of the Council of Ministers is defined under Article V.4. of the Constitution of BiH).
Under this Decision, the Society acts throughout the territory of BiH and includes the Red
Cross of FBiH and the Red Cross of RS and all their organizations and institutions. The
Society is a voluntary organization and provides assistance to public services, whose goal is
to prevent and alleviate human suffering, protect life and health, ensure respect for human
beings, work on preventing diseases and improving health and social protection, without
discrimination on any grounds such as sex, ethnicity, race, or religious or political affiliation.
The Society is a part of the International Red Cross and Red Crescent Movement.

ACTION PLAN FOR CHILDREN 2002-2010 was adopted by the Council of Ministers at its
session held on 18 July 2002. At the same time, the Council of Ministers issued a Decision
to establish the BiH Council for Children.24 The Action Plan has assumed the general goals
of the World Summit for Children. These goals, which were taken as a basis and framework
of the Action Plan, include the universal principles of putting children first and educating
every child, as well as a more specific focus on combating HIV/AIDS, because children and
their families must be protected from the devastating effect of HIV/AIDS. Within the chapter
on education, the Action Plan notes the need to organize health and prevention programs
and include young people in them. Furthermore it suggests establishing a fund or a
foundation for children at the national level, which would make it possible to eliminate the
present unequal access to health protection available in BiH.25 The main guidelines in the
field of health are raising the level of knowledge among the general population on the HIV
transmission, protection, continuous epidemiological surveillance of an adequate quality,
and inclusion of all segments of society in combating HIV infections. The Action Plan
stresses the need to mobilize all forces available in the social community to seriously tackle
the problems of population policy, establish family planning counseling services and make
them available to all citizens of BiH, and implement health-promotional campaigns
discussing family planning.
The research which served as a basis for this part of the Action Plan showed that as much
as 70 percent of the population had prejudices about the ways of HIV transmission, and
there were no data on sexual behavior among adolescents and their attitude concerning the
use of condoms. Knowledge of contraception is not sufficient to prevent unwanted
pregnancies and sexually transmitted infections. The Plan noted that HIV requires an
ongoing and continuing epidemiological surveillance and monitoring of an adequate quality,
including harnessing the potentials of the entire society and improvement of measures for
early detection and treatment of diseases.




23
     Official Gazette 24/00
24
     Official Gazette of BiH 29/02
25
     Page 11 of the Action Plan


15
The following are priorities in combating HIV/AIDS: extra-curricular and teaching activities,
and information campaigns to educate the school population, young persons and education
professionals about preventing an increasing stigma and discrimination against children
infected with HIV/AIDS; initiatives to prepare a comprehensive awareness-raising program
among the population; and initiatives for a program to conduct a continuous epidemiological
surveillance of an adequate quality, focusing particularly on children.

The implementing agencies for all these activities are the Council for Children, in
cooperation with the HIV/AIDS Advisory Board in BiH and Ministries of Health on all levels.

The Action Plan states that the implementing agencies for numerous activities are the
highest authorities in the entities and the District. At the level of BiH, these are the Council of
Ministers, Ministry of Human Rights and Refugees, Ministry of European Integrations,
Ministry of Civil Affairs and Communications, and the Statistics Agency of BiH. At the time of
writing this report, the Council for Children had suspended its activities because the term of
office of its members had expired, and the 2002 Decision which appointed members on the
Council did not provide for the election and appointment of new members.

RESOLUTION ON HEALTH POLICY FOR ALL CITIZENS OF BiH This resolution was
enacted by the House of Peoples of the Parliament of BiH at its session held on 29 April
2002.26 The Resolution notes the presence of various forms of discrimination and violation of
numerous human rights, in particular the rights to life and health. This makes it necessary to
establish a health system and health policy compatible with those of other member countries
of UNICEF, WHO and other organizations. The Resolution does not discuss expressly the
control of HIV/AIDS and STIs, but it does discuss the need to define principles and values of
health care and of health sector reforms, in particular in the field of public health and more
specifically in family medicine, or the use of in-patient capacities, as well as the need to
control the transmission of infectious diseases over the state border given the large
presence of international peace-keeping forces. The Resolution suggests the establishment
of state-level institutions in the field of public health (Public Health Institute of BiH, and
others) and health insurance (Health Insurance Agency of BiH), as well as national
commissions for certain significant areas in public health.

HUMAN DEVELOPMENT REPORT – Millennium Development Goals - BiH 2003 “Where
will I be in 2015?”27 This Report covers development goals defined under the Millennium
Declaration of September 2000, which was adopted by 189 members of the United Nations
and which serves as a basis for the global cooperation in the 21st century. These goals are
focused on development, governance, peace, security and human rights. The program is set
out at a global level. The Report for BiH presents a strategy for the governmental sector on
all levels, for the non-governmental sector and for all citizens. It was made with the support
of UNDP, the agency responsible for global monitoring of the progress in achieving the
Millennium Development Goals (MDG). One of the MDG goals is combating HIV/AIDS,
malaria and other infections. The Report specifically notes that:
- HIV/AIDS and mental health are related, due to the stigma and discrimination against
persons who are infected.
- Adolescents are particularly exposed to HIV/AIDS because of their behavior which affects
their health (unsafe sexual relations, unwanted pregnancies, psychoactive substances).
- Health care needs to be secured and coordinated at the national level because it is the
responsibility of the state to guarantee to each of its citizens a minimum of fundamental




26
     Official Gazette of BiH 12/02
27
     www.undp.ba


16
rights to health care, regardless of the part of the country in which the person lives or is
staying temporarily.

Rapid Assessment and Response (RAR), a UNICEF study on the possibility of HIV/AIDS
infection, in particular among vulnerable groups in the FBiH, RS and Brčko District in 2002.
This study shows that young persons engage in risk behavior as a form of escape from the
general discontent with the social and economic situation, education, lack of self-esteem,
courage and the feeling of inadequacy. This research shows that young people are
behaving promiscuously for money, drugs and other material benefits; they are using health
services only when there are obvious disease symptoms or when they are forced to. The
percentage of those who were given relevant information in school is insignificant. A great
number of injection drug users exchange needles and syringes among themselves, unaware
of the dangers of HIV infection.
A large number of young people, as many as 67 percent respondents, believed that they are
not at a risk of HIV or STIs. 44 percent respondents received information on HIV/AIDS and
STIs in their families, 24 percent through the media and 20 percent from their peers.

RESOLUTION ON THE YOUTH IN BiH28 The House of Representatives of the BiH
Parliament has issued this Resolution regarding the unfavorable position of the youth in the
society in BiH. Considering the analyses done by expert groups and the practices in the
European countries, the Resolution called on all competent institutions in BiH to work
together with young people and to initiate the creation of a youth policy, which would include
the fields of informal education, health, media, young people with special needs, vulnerable
young people due to their risk behavior (underage delinquents) and other priority fields.
The Resolution called on the institutions to sign, ratify and supervise the implementation and
adherence to certain international documents, including the Convention on the Rights of the
Child, Special Sessions of the UN General Assembly on the youth (1985, 1995), on
HIV/AIDS (2000) and on children (2002).

HIV/AIDS PREVENTION AND COMBAT STRATEGY in BiH 2004-2009.29 The above
Resolution served as a basis to draft this document. The Strategy defines five goals which
should ensure prevention of transmission and spread of HIV; appropriate treatment, care
and support to persons who are living with HIV; development of state capacities and
strengthening of relations with international organizations in combating HIV.
It is noteworthy that Strategic Goal 1, in addition to general education, provides for
education of school children and young people and groups engaging in risk behavior
(delinquents, victims of sexual abuse, men practicing sex with men, persons selling sex).
This education provides for the introduction of standardized programs for teachers and
school children and young people, including basic knowledge and prevention of HIV/AIDS
and STIs, prevention of drug abuse and safe sexual behavior promotion programs for school
children and young people. This goal also provides for a continuous testing of blood and
blood derivatives for HIV and Hepatitis B.

Strategic Goal 2 aims at improving the present system of health care and psycho-social
care, given the absence of an appropriate system of treatment, care and support for people
who are living with HIV/AIDS.
Strategic Goal 3 provides for the creation of a legal framework for the respect for and
protection of human rights and ethical principles for persons who are living with HIV/AIDS.
Here, the stress is on the obligation of the state to act in accordance with Article 14 of the




28
 Official Gazette of BiH 12/03
29
 By Decision of Council of Ministers BH and Ministry of Human Rights BH, supported by UNAIDS, the
Advisery Board was founded to prepare the Strategy.


17
European Convention for the Protection of Human Rights and Fundamental Freedoms and
to ensure the enjoyment of human rights and fundamental freedoms without discrimination
on any ground. The fundamental principle should be “equal rights for all people living with
HIV/AIDS”. Furthermore, this goal notes the absence of HIV/AIDS-related laws and
regulations, lack of harmonization with the EU legislation and the stigma and discrimination
against persons who are living with HIV/AIDS.

ORGANIZATION OF VOLUNTARY COUNSELING AND TESTING (VCT)30 – Principles and
Rules - 2004 This document is to be applied across BiH. At the time this review was written,
a state Protocol on voluntary confidential counseling and testing for HIV was being drafted.
The Rules and Principles have established that the HIV testing must be: based on the
principle of confidentiality and anonymity; accompanied by pre-test and post-test counseling;
and subject to a fully informed consent of the beneficiary before the testing. The document
has defined that the testing must be absolutely anonymous and free of charge (there are
recorded cases in the RS that people had to pay up to KM 90 if they had no health
insurance, or a little less if they had health coverage. This testing is not free of charge in the
General Hospitals in Prijedor, Trebinje, Bijeljina, Doboj, East Sarajevo and Foča; in the
General Hospital in Gradiška one needs to pay KM 21 if there is a physician’s referral, or KM
42.30 if there is no referral; in the Transfusion Service in Kasindol, testing costs KM 24 with
a referral, or KM 48 without one - in other words, the testing is neither anonymous nor free
of charge. Free testing is only occasionally available in the RS thanks to donated test kits).
This documents stresses that attention should be paid to groups engaging in risk behavior,
which are defined as follows: intravenous drug users; sexual workers; men who have sex
with men; mobile population; young population between 10 and 24 years of age; and other
drug users, in addition to injection drug users.
The document particularly emphasizes partnership relations with the non-governmental
sector because these groups are more difficult to reach through institutions than through the
non-governmental sector. It is also recommended that tests should be done by specially
trained health professionals and that test kits for personal use should not be used.

LAW ON DRUG ABUSE31 As part of its preventive measures, this law prescribes continuous
implementation of organized educational programs in the family, school, health institutions,
associations, religious communities and the media (Article 69(1)(b)). The law also prohibits
disposal or abandonment of used needles or syringes in places not specifically designated
for these purposes in accordance with regulations on treatment of hazardous waste (Article
73). In the event a person acts in contravention of this obligation, such person shall be liable
for a misdemeanor (Article 90(1)(4)). The law also requires the maintenance of records on
addicts, subject to full confidentiality of their identity, except in cases provided for under law
when such confidential information may be disclosed (Article 76). Such disclosure is
classified as a misdemeanor and entails a fine for a private individual between KM 300 and
3,000.

At the time this analysis was written, a Strategy on Combating Drug Availability and Abuse
in BiH was being drafted with the coordination of the Ministry of Security of BiH. UNICEF in
BiH has supported the Ministry of Security in the drafting of this Strategy. Once the Strategy
is adopted by the Council of Ministers of BiH, an Action Plan and a law will be drafted to
implement it. Through this Strategy, BiH will create a legal framework to implement a harm
reduction program among injection drug users (exchange of needles, syringes and other
equipment; availability of substitution therapy and detox centers). The working group which




30
     accepted after the Strategy was adopted
31
     Official Gazette of BiH No. 8/06


18
drafts this Strategy has decided to focus on three thematic units: (1) prevention and
education, (2) treatment and social inclusion/reintegration and (3) reduction in demand and
supply of narcotics.32

Given the emphasis on the protection of human rights of persons infected with HIV/AIDS
and STIs, we also need to analyze the LAW ON FREEDOM OF INFORMATION IN BiH,33
which defines the notion of information in the control of public authorities and defines
exemptions from disclosure justified exclusively by the public interest. Any contravention of
this law may be subject to appropriate criminal and minor offense laws, and the law further
provides for protection by the institution of Ombudsman for BiH in accordance with its
mandate in protecting human rights and fundamental freedoms.

FRAMEWORK LAW ON PRIMARY AND SECONDARY EDUCATION IN BiH34 Article 3 of
this Law defines the general objectives of education, which include making knowledge
available as a basis for understanding oneself, others and the world we live in. Article 5
stresses that children’s rights concerning education, proper care and well-being, physical
and mental health and safety in school and all other places where they receive education,
have primacy over any other rights. In the event of a conflict of rights, the priority is given to
such right and interpretation which will be most beneficial to the child involved. Article 6
stipulates that the school has a responsibility to contribute, within the school and in its
environment, to the creation of such culture as will respect human rights and fundamental
freedoms of all citizens, as set forth in the Constitution and international documents
protecting human rights and fundamental freedoms. Article 24 prohibits parents from limiting
the right of their children to have access to and benefit from education appropriate to their
needs and capacities. Article 25 provides for the right of parents to choose education for
their children, which does not mean however that such choice may promote prejudice on
racial, sexual, ethnic, linguistic, religious or any other basis, or that it may be contrary to the
Law. Article 43(4)(e) of this Law stipulates that the common core curriculum should provide
for the application of curricula that correspond to the developmental needs of the children
concerned, their age and special interest with an emphasis on the promotion of a healthy
lifestyle that is in the best interest of the student, parents, teachers and the society.
The protection of children’s rights expressly provided by Article 5 of this Law has served as
a basis for Pedagogical Institutes to adopt standards for primary and secondary schools
which include such programmatic content as moral education; life skills – a healthy lifestyle;
humane relations aimed at encouraging the students to have humane and responsible
relations with others; development of a culture of communication, respect and tolerance;
and orientation to a healthy lifestyle and environmental protection. Life skills specifically
include lectures on HIV/AIDS and sexual relations, attitude to persons with AIDS, etc. All
these topics should be discussed at class meetings with the support of the school
psychologist and educator.

LAW ON GENDER EQUALITY IN BiH35 Article 2 of this law stipulates gender equality,
which is guaranteed in all spheres irrespective of marital or family status, particularly in the
fields of education, economy, labor, employments, social and health protection, etc. The law
also defines “gender-based violence”.
Article 11 defines that everyone has equal rights to social protection regardless of gender.
Discrimination on the grounds of gender in the exercise of all forms of social rights defined
by present legislation is prohibited, and this particularly relates to applications to exercise

32
   http://www.unicef.org/bih/ba/media
33
   Official Gazette of BiH No. 57/00
34
   Official Gazette of BiH No. 18/03
35
   Official Gazette of BiH No. 16/03



19
any social protection rights; to the process of ascertaining and exercise of social rights and
benefits; and to the ineligibility for certain rights. Article 12 requires competent authorities to
ensure that primary and secondary legislation and mechanisms relating to access to and
enjoyments of social protection are non-discriminatory on the grounds of gender, both
directly and indirectly. The law also provides that everyone has an equal right to health care
and access to health care services, including those relating to family planning, regardless of
gender (Article 13).
The law prohibits all forms of violence in private and public life on the ground of gender
(Article 17).

AGREEMENT ON THE METHOD AND PROCEDURE TO USE HEALTH CARE FOR
INSURED PERSONS IN BiH OUTSIDE THE ENTITY, OR BRČKO DISTRICT, IN WHICH
THE PERSON IS INSURED36 This Agreement stipulates that an insured person who
changes residence outside one entity is entitled to health care, provided that the payer of
contribution makes payment in accordance with the law on health insurance of the entity of
new residence. This has provided for both the right and volume of health care during
temporary stays in the territory of another entity for education or continuing education
purposes, as well as for cases of treatment based on a document issued by the competent
health insurance institution to which the insured person belongs (Article 2). During such
period, medicines are paid for by the insured person, who is entitled to a subsequent refund
(Article 3). However, this service is not easy to use, as is clear from Article 4, which provides
for a mandatory prior consent of the competent health insurance institution (domicile
institution) in the event the value of service or aids exceeds KM 300. Where a person is
received on an in-patient or urgent treatment, this must be notified within three days to the
health insurance institution with which the person concerned is insured (Article 7).

REGULATION ON ASYLUM IN BiH 37 This regulation was adopted by the Ministry of
Security of BiH, and among other rights, it guarantees asylum seekers the right to essential
health care. This right is funded by the Ministry from the budget of BiH institutions or through
special agreements.

REGULATION ON THE USE OF HEALTH INSURANCE AND HEALTH CARE FOR
PERSONS WITH A RECOGNIZED REFUGEE STATUS OR ANY OTHER FORM OF
INTERNATIONAL LEGAL PROTECTION IN BiH38 This regulation was adopted by the
Ministry of Human Rights and Refugees, in cooperation with the Ministry of Civil Affairs of
BiH and the Ministry of Security of BiH. The Regulation defines the authorities, the
requirements and the ways in which to use health insurance and health care for persons
with a refugee status in BiH.
These persons enjoy health care under the same conditions as BiH nationals.
The Ministry of Human Rights and Refugees is the payer of contributions to entity health
insurance agencies and the relevant health department of the Brčko District.
Notwithstanding this Regulation, the entities, the District and the cantons are entitled to offer
a more favorable treatment to persons with a refugee status than the one guaranteed by the
Regulation. The Ministry is responsible for the exercise of this right.

LAW ON PROTECTION OF PERSONAL DATA39 This law applies to the processing of
personal data by authorities at all levels of BiH, entities, Brcko District and other lower-level




36
   Official Gazette of BiH 30/01
37
   Official Gazette of BiH 26/04
38
   Official Gazette of BiH 24/07
39
   Official Gazette of BiH 69/01


20
authorities. Article 3 defines the notion of personal data and special categories of data,
which include any data on health and sexual life. Personal data showing health status or
sexual life cannot be processed automatically unless appropriate protection is provided for
by law. Personal data collected and stored for purposes of scientific research or statistics
shall remain unidentified to the extent possible. Data capable of identifying a specified or
specifiable person shall be stored separately (Article 24). Any disclosure of such data is
subject to criminal liability (Article 149 of the Criminal Code of BiH) and misdemeanor
liability.

CRIMINAL CODE OF BiH 40 This Code defines a child as a person who has not reached 14
years of age, and criminal laws do not apply to such person. A juvenile is defined as a
person who has not reached 18 years of age.
The Code provides punishment for the criminal offense of trafficking in persons, in particular
juveniles, and international procuring for prostitution which includes juveniles (Articles 186
and 187 of the Criminal Code of BiH).

CRIMINAL PROCEDURE CODE OF BiH41 This Code defines special evidentiary rules when
dealing with cases of sexual misconduct (Article 264). When proceedings involve a minor
(juvenile), the bodies participating in the proceeding must be mindful of the mental
development, sensitivity and personal characteristics of the minor so that the conduct of the
criminal proceeding will not have an adverse effect on the minor’s development. The
proceeding against a minor cannot be made public.


2.2. Federation of BiH
THE CONSTITUTION OF FBiH42 requires that the Federation ensures the highest level of
internationally recognized rights and freedoms provided in the documents listed in the
Annex to the Constitution, in particular the following rights: a) to life; g) to privacy; j) to
protection of the family and of children; m) to education; n) to social protection; o) to health
care; s) to protection of minorities and vulnerable groups; (Article II A. 2.)
Article III.2 of the Constitution provides, among other things, that the federal and cantonal
authorities are responsible for a) guaranteeing and enforcing human rights; b) health; e)
social welfare policy.
Article III.3. (3) grants the Federation Government powers to make policy and enact laws
concerning each of these responsibilities.
Article III.4. specifically lists under Item j) implementation of social welfare policy and
provision of social welfare services.

EUROPEAN SOCIAL CHARTER, AND PROTOCOL I APPENDED43 This Charter has not
been ratified in its revised version, but some EU members did not do this either. States,
parties to the Charter undertake as the aim of their policy, pursued at both national and
international level, the attainment of conditions to effectively realize the rights and principles
according to which all workers and their dependants have the right to social security. Article
11 of the Charter stipulates that the member state takes appropriate measures designed to
remove as far as possible the causes of ill-health; to provide advisory and educational
facilities for the promotion of health and the encouragement of individual responsibility in
matters of health; and to prevent as far as possible epidemic, endemic and other diseases.
The state undertakes to establish and maintain a system of social security and raise it
progressively to a higher level. Article 13 stipulates the obligation of the state to ensure

40
   Official Gazette of BiH 37/03, 54/04, 61/04, 30/05, 53/06 and 55/06
41
   Official Gazette of BiH 36/03
42
   Official Gazette FBiH 1/94
43
   ratified - Official Gazette of FBiH 1/1994


21
provision of adequate assistance to any person who is unable to secure such assistance in
case of illness.

LAW ON PROTECTION OF POPULATION AGAINST INFECTIOUS DISEASES44 Article 2
of this law defines the notions of “infectious disease,” “epidemic of an infectious disease,”
“hospital infection.” This is the first time the HIV infection was distinguished from AIDS as a
disease. Protection against infectious diseases is the duty of everyone, from the level of
local government to the Federation-level authorities, including private practices, companies
and any other legal and natural persons. The law provides a list of infectious diseases,
which includes HIV infection and STIs. Article 11 provides for special measures to prevent
and control infectious diseases. Some of these measures may be specifically applied to HIV
infections and STIs: health education on the prevention of infectious diseases, early
detection of sources and channels of transmission, notification, surveillance of carriers, staff
and any other persons. Health education programs are adopted by the Federal Minister and
implemented by the cantons. For early detection purposes, the law provides for
epidemiological investigations (surveys) on outbreaks of AIDS, HIV antibody carriers and
STIs, including health checks of persons suspected of being diseased or being carriers of
disease agents. The law stipulates the mandatory testing of donor blood, of organs donated
for transplantation and of semen for HIV, Hepatitis B and C antibodies and syphilis.
Subject to an informed consent of the person concerned, blood tests are done for risk
behavior groups (intravenous drug users, promiscuous persons) for HIV, Hepatitis B and C,
and pregnant women. This also includes persons who volunteer for counseling and testing
in order to learn their HIV status. Article 16 states that the institution or private practice is
required to immediately notify any diagnosed or even suspected infectious disease listed in
the law to the Federal and Cantonal Public Health Institutes. Article 30 of this law defines
that health surveillance will be applied to persons working in educational and other
institutions for children and youth (pre-school institutions, dormitories, student halls, child
and student rest homes, social care institutions, etc.), staff of health institutions, social care
institutions, educational institutions, and persons who are carriers of antibodies to
contagious Hepatitis B and C and HIV/AIDS. This surveillance includes an examination
before hiring, occasional checks during the employment and after having a disease. Article
37(3) stipulates that persons carrying HIV infection agents and agents of other diseases that
can be transmitted to other humans must be informed of the appropriate behavior to prevent
transmission of the infection.

LAW ON HEALTH CARE45 This law requires all citizens to maintain their health and to take
part in all health-related prevention activities undertaken in their places of residence, with a
view to promoting and preserving health and preventing diseases (Article 3). With the
consent of the Ministry of Health, the Ministry of Education is required to ensure that the
curricula provide for health education and self-protection of pre-school children and students
(Article 4). Health care is organized as primary, specialist and hospital. Primary health care
includes family physicians, general medicine, school medicine, hygiene and epidemiological
care, dental care, care of women and children (Article 6).
It is the responsibility of the FBiH to ensure prevention of HIV/AIDS.
The cantons are to ensure hygienic and epidemiological activities, resources to build and
equip health institutions so they can implement primary health care and coroner services.

The founding principles of health care in FBiH are listed in Article 10 of this law: “Health care
for citizens in FBiH is provided on the principles of comprehensiveness, continuity,
availability and a universal access to the primary care and specialized access to
specialist-consultative and hospital health care.”


44
     Official Gazette of FBiH 29/05
45
     Official Gazette of FBH29/97


22
The law further explains the meaning of comprehensiveness, continuity and availability.
Comprehensiveness of health care ensures coverage of all citizens of the FBiH by
appropriate health care measures; continuity means organizing health services, in
particular at the level of primary health care as it provides continuous health care to the
population; availability means such distribution of health institutions and professionals so
that all citizens have similar or equal health care conditions, in particular with respect to
primary health care. Finally, universal access means freedom of choice of physicians and
dentists who implement the measures to improve the health of citizens, prevention,
treatment and rehabilitation.
Health care measures, among others, include the provision of comprehensive (preventive,
curative, rehabilitation) health care for children and youth, as well as women regarding
family planning, pregnancy, delivery and maternity, and provision of post-mortem
examinations. Article 20 stipulates that primary health care includes care for the health and
treatment of all family members; measures of health protection and care and improvement
of health of students and youth; and assessment of their fitness for school and work. In
exercising the right to health care, each citizen has an inalienable right to accessible health
care and also to indemnification for any damage caused by inappropriate health services,
provided that there is proof of professional error (Article 26(1)(1) and (2)). Article 34 of this
Law requires health professionals to protect information on the health status of diseased
persons as a professional secret, violation of which is deemed to constitute violation of the
code of medical ethics. When an infectious disease is determined to be the cause of death,
this has to be reported to the competent health institution or a health professional, who
performs a post-mortem examination. Post-mortems are performed to determine the cause
of death when this is necessary to protect the health of citizens and for epidemiological
reasons. (Article 148 and 149 of the Law).

LAW ON HEALTH INSURANCE46 This law defines that health insurance may be
compulsory, extended and voluntary.
Every insured person has an equal position with respect to the exercise of health insurance
rights.
According to the Law, insured persons are children who have reached 15 years of age, if
they have not completed their primary education, and children who have not continued their
education or have not started working following completion of their primary education, and
have registered with the Employment Bureau within 30 days of having reached 15 years of
age or the completion of the last school year. Persons who have lost their status as a
student according to applicable school regulations, provided that they apply with the
Employment Bureau within 30 days of the last day of regular education, are also entitled to
health insurance for a period of one year.
Article 22 states that children of insured persons have health coverage until the end of their
education or until they reach 26 years of age. The right to health insurance is also enjoyed
by children of insured persons who have suspended their regular education because of
disease or injury, and such right is enjoyed so long as the disability lasts. The insurance of
such children shall be extended during the resumed education for the period of suspended
education. According to Article 25, secondary school students and full-time college and
university students who are nationals of the FBiH and have residence in the territory of the
FBiH and are not covered as members of the family of an insured person, have the right to
health care to the same extent as members of the family of an insured person.
Members of student families from Paragraph 1 of this Article (spouse and children) have the
right to health care to the extent granted to family members if they are not entitled to health
care on any other grounds.




46
     Official Gazette of FBiH 30/97, 7/02


23
The right to health care defined under Paragraphs 1 and 2 of this Article is enjoyed by
persons so long as they have the status of primary/secondary school students and full-time
college/university students.
Article 31 defines that compulsory health insurance, in cases and under conditions set forth
in this law, provides to insured persons and member of the family of an insured person:
a) health care
b) refunding of travel costs related to the use of health care services
Article 32 defines that health care ensured under this law includes treatment of infectious
diseases.
According to Article 53, the right to compulsory health insurance may be exercised only by a
person whose status as an insured person has been determined. This status is determined
by the Cantonal Institute and is proven by a document defined under a regulation passed by
the Cantonal Minister of Health.
Articles 86 lists the following payers of the contribution for compulsory health insurance:
employment bureau – for temporarily disabled persons; health care institute – for
persons who are recipients of continuous financial aid and are placed in social care
institutions; competent administrative authorities of the canton – for students who are
not insured on any other grounds, and students who are performing practical work related to
their education; and competent administrative authorities of the canton or municipality -
for socially vulnerable persons who are not insured on any other grounds.
Article 99(1) and (3) expressly states that the Cantonal Insurance Institute implements “the
policy of development and improvement of health care which is provided by compulsory
health insurance” and “carries out activities in relation to the exercise of insured parties’
rights; ensures lawful and timely exercise of these rights; and provides professional
assistance in the exercise of their rights and protection of their interests.” The law also
provides for sanctions against persons who fail to pay the contribution for compulsory health
insurance of insurance beneficiaries, defining this as a misdemeanor; however, the law does
not provide any sanctions for failure to pay contributions for students and socially vulnerable
persons. The legislators were clearly confident that such failure would never happen to
competent administrative authorities.

LAW ON RED CROSS OF FBiH47 This is a charity operated as part of the Red Cross
Society of BiH, based on the mission and principles of the International Red Cross and Red
Crescent Movement and Geneva Conventions. The Red Cross Society of FBiH consists of
all organizations at the levels of cantons, cities, municipalities and associated municipalities.
The Red Cross of the FBiH implements its humanitarian goals and tasks in the fields of
health and health improvement, social care, health and humanitarian education (Article 5).
In particular, the main goals of the Red Cross are raising the health culture of the
population; encouragement and improvement of social security of the citizens; solidarity and
promotion of mutual assistance; improvement and promotion of the principles of the
International Red Cross and Red Crescent Movement, as well as international humanitarian
law among the population, in particular among children and youth.
As part of the Red Cross Society of Bosnia and Herzegovina, the Red Cross of FBiH
maintains and develops relationships and cooperation with the International Committee of
the Red Cross, International Federation of Red Cross and Red Crescent Societies, national
Red Cross and Red Crescent societies and other international and national, humanitarian,
charity, cultural, health and social institutions (Article 8(1)). The Red Cross of FBiH also
works on health and social care and social education of the population and takes part in
organizing various forms of mutual assistance between citizens in the spirit of humanism
and solidarity. It also takes part in organizing blood donations and encourages the
population to donate blood. The Red Cross of FBiH and Red Cross organizations of the
FBiH may provide food and accommodation services and other forms of humanitarian aid to


47
     Official Gazette of FBiH 28/06


24
persons who need this form of assistance for health, social or other reasons (Article 12(1) of
the Law).

REGULATION ON THE EXERCISE OF COMPULSORY HEALTH INSURANCE RIGHTS48
This Regulation enables the insured persons to choose the primary health care physician or
dentist who implements preventive measures or treatment measures for insured persons
(Articles 7 and 9). It is the physician who issues a referral for in-patient treatment to the
insured party, whether within the canton or outside of it. When an emergency treatment is
needed outside the canton, the physician sends the referral to a professional physicians’
team with the Health Institution for their opinion on the need to send the person for testing or
treatment. Both opinions are then provided to the competent body of the Cantonal Health
Insurance Institute for final approval.

DECISION ON ESTABLISHING AN HIV/AIDS COORDINATOR NETWORK FOR FBiH49
This decision has established a network of professionals to take general and special
measures to protect the population from the acquired immune deficiency syndrome
(HIV/AIDS).

AGREEMENT ON THE USE OF HEALTH CARE OUTSIDE THE TERRITORY OF THE
CANTONAL HEALTH INSURANCE INSTITUTION TO WHICH THE INSURED PERSON
BELONGS50 All health insurance institutes have signed this Agreement in order to ensure
that their insured persons, who are staying in the territory of another canton for education or
continuing education purposes, can use health care services in the place of their temporary
residence.

DECISION ON PRIORITY VERTICAL PROGRAMS OF HEALTH CARE OF SIGNIFICANCE
FOR FBiH AND MOST-COMPLEX PRIORITY FORMS OF HEALTH CARE FROM
CERTAIN SPECIALIST FIELDS, WHICH ARE TO BE PROVIDED TO INSURED PERSONS
IN THE TERRITORY OF FBiH51 Priority programs funded from the FBiH security fund are
prevention programs and programs for improvement of child health and co-financing of
Hepatitis C medicines. Prevention programs and programs for the improvement of child
health includes programs of voluntary, anonymous and free-of-charge HIV/AIDS testing and
purchase of medicines from the list of retroviral medicines, as well as any other prevention
programs aimed at preventing HIV/AIDS and Hepatitis C. The Federal Public Health Institute
is required to harmonize with this Decision all agreements signed earlier with health care
institutions.

DECISION ON STANDARDS AND NORMS OF HEALTH CARE FROM COMPULSORY
HEALTH INSURANCE52 This Decision ensures health protection to all insured persons
under equal conditions.

LAW ON PRINCIPLES OF LOCAL GOVERNMENT IN FBiH53 Article 8(3) of this Law
defines the responsibilities of local government units, which include ensuring and protecting
human rights and fundamental freedoms in accordance with the Constitution.
Article 25(1), more specifically its provision in line 3 concerning decision-making in any
issues of significance for the work and life in the local community, refers to the care of
persons who need assistance, to which purpose the local community is required to initiate
cooperation with professional health care bodies.


48
   Official Gazette of FBiH 31/02
49
   Official Gazette of FBiH 46/03
50
   Official Gazette of FBiH 41/01 and 7/02
51
   Official Gazette of FBiH 8/05
52
   Official Gazette of FBiH 5/03 and 18/04
53
   Official Gazette of FBiH 49/06


25
LAW ON FREEDOM OF INFORMATION IN FBiH54 This law defies the notions of
information, public authority, personal information, etc., as well as the activities of the Press
Council and Communications Regulatory Agency in sanctioning the media which violate
human rights and the rights of the child.

FAMILY LAW OF FBiH55 Article 20 stipulates that the registrar shall advise future spouses
before solemnization of their marriage to inform each other of their health status and visit a
health institution to inform themselves of the possibilities and advantages of family planning.
With respect to protection of children, the Law follows the principles of the Convention on
the Rights of the Child and the best practices of the European countries. Article 124
stipulates that the child has the right to care for his or her life, health and development of
personality. The child has the right to protection from interference with his or her privacy and
family. In addition, the child has the right to protection against all forms of violence, abuse,
maltreatment and neglect. Parental care should be in the best interest of the child (Article
127). Parents are required to ensure protection of the child’s well-being. Parents are
required to care for the life and health of the child; protect the child from all forms of vice
such as drugs, alcohol, vagrancy, banditry, stealing, prostitution, beggary, and any other
forms of juvenile delinquency; and to protect the child from violence, injuries, economic
exploitation, sexual abuse and any other asocial behavior. To protect child’s interests,
parents are required, acting in accordance with the child’s age and degree of maturity, to
control his or her behavior (Article 130 and 134).
The custody authority is required ex officio to take any required measures to protect the
rights and the best interest of the child based on direct knowledge or information.
Notification of child rights violation in particular includes any violence, abuse, sexual abuse
or neglect of the child, which must be notified by all bodies or authorities and natural
persons (Article 150).
The Court will strip a parent of his or her parental rights in an out-of-court procedure if the
parent has abused his or her rights or grossly neglected his or her duties or abandoned or
neglected the child he or she does not live with, thereby clearly jeopardizing the safety,
health or morals of the child, or if he or she fails to protect the child from such behavior of
the other parent or another person (Article 154).
In the event a minor who has reached 16 years of age is given permission to enter into
marriage or if a minor has become a parent, he or she may acquire legal ability to transact
business in an out-of-court procedure, which entails all the rights and responsibilities of an
adult. The ability to transact business is acquired by coming of age or by entering into
marriage. A person comes of age having reached 18 years of age, while the ability to
transact business may be acquired by a minor older than 16 years of age who has become
a parent. A minor who has reached 14 years of age acquires a limited ability to transact
business (Article 157). A child who has reached 14 years of age, which the court finds
capable of understanding the meaning and legal consequences of his or her actions, may
be a party to a procedure and may take procedural actions on its own. A child who has not
reached 14 years of age must be represented by a counsel (Article 271).

LAW ON SOCIAL WELFARE56 This Law defines the basis for social protection of citizens,
their families and especially children (Article 1 of the Law). For the purposes of this Law, a
child is any person under 18 years of age. Exceptionally, this may also include a person
over 18 and under 27 years of age, who has the right to child allowance or scholarship for
students (Article 6 of the Law).
According to this Law, a person may exercise the right to financial assistance or care by
another person if they are unable due to permanent changes to their health status to meet

54
   Official Gazette of FBiH 32/01
55
   Official Gazette of FBiH 35/05 and 41/05
56
   Official Gazette of FBiH 36/99, 54/04 and 39/06


26
their essential life needs, and have not been placed into an institution or their income does
not exceed a pre-determined amount. The Law also provides for the right to social work and
other services, which may be enjoyed by individuals, families and social groups irrespective
of their financial abilities and their use of any form of social protection, with a view to
protecting their rights and interests and preventing occurrence or alleviating the
consequences of social problems. Services of social work and other professional work
include counseling services in resolving any family and marital problems, as well as
measures and actions, taken in cooperation with local communities and other authorities, to
control and prevent socially unacceptable behavior of children and other individuals, families
or social groups (Article 46 of the Law). Families with children are protected in order to
ensure for all children equal or similar conditions for a healthy and proper physical,
intellectual and emotional development in the family; to ensure achievement of the
reproductive role, care, raising, education and protection of children and improvement of the
quality of life in the family; and to ensure development of more humane relationships in
accordance with the principles of civil morals and solidarity.

LAW ON PROTECTION AGAINST FAMILY VIOLENCE57 Article 6 defines violence and
specifies any actions that qualify as violence. The Law defines violence as any action
involving the use of physical force or psychological coercion against the physical or
psychological integrity of a family member, as well as any action that may cause physical or
psychological pain or financial losses.

CRIMINAL CODE OF FBiH58 Article 2 of the Code defines a child as a person who has not
reached 14 years of age, and a juvenile as a person who has not reached 18 years of age.
The Code stipulates that criminal legislation shall not apply to persons under 14 years of
age (Article 9). Special provisions apply to juveniles. The Code uses the term senior juvenile
and stipulates that juvenile imprisonment for such persons shall be in special institutions for
juvenile offenders, while persons between ages of 18 and 23 may be imprisoned in special
institutions or departments for young adults. The Code also defines criminal offense against
sexual freedom and morality, in particular sexual intercourse with a child or a helpless child,
or if such offense causes death of the child, serious bodily injury or serious health
impairment or pregnancy in a female child. The Code further defines the criminal offense of
pandering, in particular if such offense is committed against a child or juvenile. The chapter
on criminal offense against human health defines the following criminal offenses:
transmission of a contagious disease, transmission of a venereal disease, medical
malpractice, failure to render medical aid and serious criminal offenses against human
health. Article 227 sanctions the mere act of transmitting a venereal disease, if at the same
time the criminal offense of aggravated bodily injury is not perpetrated.

CRIMINAL PROCEDURE CODE OF FBiH59 Article 91 defines that questioning of the
suspect must be done with full respect to the personal integrity of the suspect. Articles 97
and 98 of the Code define persons who may refuse to testify (in addition to the spouse or
extramarital partner, these include any persons who are a direct blood relative of the
suspect or accused, related in the lateral line to and including the third degree, and relatives
by marriage up to and including the second degree, and an adopted child of the suspect or
accused). The court decision cannot be based on a testimony given by such witness who
has testified in spite of being allowed to refuse to testify or after not having been cautioned
of the right to refuse to testify. In addition, the witness is entitled to refuse to answer certain
questions, and the court may appoint a counsel for such person during the hearing if it is
obvious that the witness is not able to exercise his or her rights during the hearing and if his
or her interests cannot be protected in any other way. Article 100(4) stipulates that when

57
   Official Gazette of FBiH 22/05
58
   Official Gazette of FBiH 36/03 corr. 21/04
59
   Official Gazette of FBiH 35/03, 56/03, 28/05, 55/06


27
hearing a minor, in particular if the minor was injured by the criminal offense, the participants
in the proceedings are required to act with circumspection in order not to have an adverse
effect on the minor’s mental condition. If necessary, the minor is to be heard with the
assistance of a psychologist, a pedagogue or another professional. Paragraph 5 of the
same Article expressly states that it is not permitted to ask an injured party about his or her
sexual experience prior to commission of the criminal offense and if such questioning has
already been carried out, the court decision cannot be based on such statement.
The provisions on psychiatric expert evaluation make no specific reference to the need for a
psychiatric evaluation of persons infected with HIV/AIDS. Article 228(2) defines the
obligation to report any criminal offense perpetrated against a minor, in case such person is
a victim of sexual, physical or any other form of abuse. Article 235 of this Code defines the
options for excluding the public from the main hearing. This is decided by the judge, or the
panel of judges, and includes cases where it is necessary to protect personal and private life
of the accused or the injured, or to protect the interests of a minor or a witness.
Article 250 of the Code defines reasons to exclude the public from the main hearing. One of
these reasons is to protect the interests of personal and private life of the accused or the
injured and to protect the interests of a minor.
Under Article 279, the legislator defined special evidentiary rules when dealing with cases of
sex crimes, including the inadmissibility of evidence or facts which relate to earlier sexual
behavior of the injured party or his or her sexual orientation.
According to this Code, any procedure against a person under 14 years of age is to be
suspended, and his or her behavior is reported to social protection services.
There is an entire Chapter in this Code defining juvenile procedure. These provisions apply
in proceedings conducted against persons who were minors at the time when they
committed a criminal offense and who had not reached the age of 21 at the time
proceedings were instituted. Parents of the minor, his/her foster parents, adoptive parents,
social worker, religious official-confessor and defense attorney are relieved from the duty to
testify concerning the circumstances necessary for evaluation of the mental development of
the minor and for gaining knowledge of his/her personality and the conditions in which
he/she lived.


2.3. Constitutions of Cantons – Concerning Human Rights
     1- Una-Sana Canton – The Canton shall take all required measures to protect human
        rights and fundamental freedoms safeguarded by the Constitution of FBiH and the
        instruments set forth in the Annex to the Constitution (Article II 1. of the Constitution).
     2- Posavina Canton – Under Article II 12, the Canton undertakes to take all required
        measures to protect human rights and fundamental freedoms safeguarded by the
        Constitution of FBiH and the instruments set forth in the Annex to the Constitution.
     3- Tuzla Canton – Article II 7 of the Constitution defines the obligation to protect
        human rights and fundamental freedoms safeguarded by the Constitution of FBiH
        and its Annex.
     4- Zenica-Doboj Canton – Article II 10 defines the obligation to ensure human rights
        and fundamental freedoms in accordance with the Constitution of FBiH and its Annex
     5- Bosnian-Podrinje Canton – Article II 9 mandates provision of the highest level of
        protection of internationally recognized rights and freedoms set forth in the
        Constitutions of BiH and FBiH and the instruments from its Annex.
     6- Central Bosnia Canton – Article II 9 also requires the Canton to ensure the
        guaranteed level of protection of human rights and freedoms from the Constitution of
        FBiH and its Annex.
     7- Herzegovina-Neretva Canton – as in other Cantonal constitutions, Article II 9
        requires provision of the highest level of protection of human rights in accordance
        with the Constitution of FBiH and international instruments listed in its Annex.
     8- West-Herzegovina Canton – Article II 12 states the same as above.


28
       9- Canton Sarajevo – Article II 7 requests respect for and provision of the highest level
           of protection of human rights and freedoms provided for by the Constitution of FBiH
           and its Annex.
       10- Canton 10 – Article II 12 of this Constitution guarantees the same protection as in
           the Constitution of FBiH and its Annex.


2.4. Republika Srpska
CONSTITUTION OF RS Article 5(1) defines the constitutional arrangement as being based
on “guarantee and protection of human freedoms and rights in accordance with international
standards.” Article 11 defines that human life is inviolable, while Article 13 defines that
human dignity, physical and spiritual integrity, personal privacy, and personal and family life
are inviolable. Article 36 states that the family, mother and child shall enjoy special
protection, and that parents have the right and duty to take care of the upbringing and
education of their children, and also that minors who are left without the care of their parents
enjoy special protection.
The Constitution further defines that everyone is entitled to health care and that this right is
guaranteed in accordance with law. Children and pregnant women are entitled to health
care financed from public revenues.
The Constitution of the Republika Srpska guarantees to its citizens a minimum of social
security (Article 61). The Constitution also guarantees the exercise and protection of human
rights and freedoms, social security and other forms of social care, health care, child and
youth care, education, environmental protection and a public information system.

HEALTH POLICY PROGRAM AND HEALTH STRATEGY IN RS by 201060 This Program
has adopted the position of the highest constituent act of the World Health Organization
“that health is a state of complete physical, mental and social well-being and not
merely the absence of disease or infirmity, and that it is the obligation of the society
to attain the highest standard of health for all citizens”.
The Program indicates that health is the responsibility of the individual, family, community
and the state, and that the state is required to implement the principle of solidarity through
laws and stable funds, ensuring thereby equal rights and equal access to health care for all.
The program envisages that the RS Government will adopt a strategy to reduce differences
in health status and in the access to health care for the population because there are
noticeable differences in the health status and access to health care of the population in
spite of equal rights to health care provided for by law.
The Program provides for special goals and measures of health policy. For the purposes of
this analysis, the following declared goals are of interest: 1- healthy start of life; 2- healthy
youth; 4- improvement of mental health, which includes development of mental health
institutions whose activities will focus on the individual, family, school, company and
community; 5- prevention and control of infectious diseases.
Special programs need to be adopted to achieve goals 1 and 2. With respect to the
achievement of goal 5 the plan is to stop the growth of HIV infection and AIDS by 2010, in
line with the WHO program.

LAW ON HEALTH CARE61 Article 2 of this Law defines that health care ensures
achievement of the highest level of health for individuals, their families and the society as a
whole. In this respect, health care includes measures to improve and preserve human
health and to prevent and control diseases and injuries by early detection, timely treatment
and rehabilitation. The core and central concern of the health care system is the provision of

60
     Official Gazette of RS 56/02
61
     Official Gazette of RS 18/99 corr. 23/99 and 58/01


29
primary health care (Article 6), and the provider of primary health care is the family medicine
health post (Articles 7 and 23). Measures of special social interest in the field of health care
are: prevention, control and eradication of infectious disease epidemics; monitoring
of the health status of the population, its hygiene status and epidemiological
situation, and taking measures to improve them; and provision of basic medicines.
Information on a patient’s condition and treatment are confidential. Clinical, epidemiological
and any other medical research which requires opinion of the citizen may only be conducted
subject to his or her consent (Articles 13 and 14). When providing health care, health
professionals are required to respect the person and the dignity of the citizen (Article 16).
Health care includes the following: medical measures and procedures to improve health,
and to prevent, control and detect at an early stage diseases and any other conditions;
physical examinations and other forms of medical aid in order to assess, monitor and review
the health status; treatment of the ill; prevention and treatment of diseases of mouth and
teeth; prosthetic devices and rehabilitation.
Health institutions are required to maintain medical documents and records and to submit
individual, collective and periodical reports to the Public Health Bureau, a specialized
institution which monitors the health of the population and the epidemiological situation, and
which recommends and takes measures to prevent the spread of contagious diseases, etc.
In the event a contagious disease is the suspected cause of death, the physician concerned
is required to notify thereof the hygiene inspection service. The penalty provisions prescribe
fines for physicians who fail to refer citizens to an appropriate health institution in cases
where such physicians are unable to provide an appropriate form of health care. Fines are
also provided for physicians who violate the confidentiality of the patient-doctor relationship
(Article 98).

LAW ON HEALTH INSURANCE OF RS62 This Law defines the system of compulsory and
extended health insurance, the rights stemming from insurance, and the way in which these
rights can be exercised. Under this Law, the insured include persons who are employed and
persons who are registered with the Employment Bureau (unemployed with secondary,
college or university education), and foreign nationals on education in the RS. In addition,
the insured include members of the immediate family of the insured so long as they are
attending full-time education until age 26, or longer if the person was undergoing treatment,
in which case this period will be extended for the period during which education was
suspended.
Article 19 defines the measures included in health care. The Law defines that the insured
share the costs of health care services used with the exception of children under 15 years of
age and “those suffering from certain diseases”; however, these diseases are not defined in
this Law.

LAW ON THE POSITION AND POWERS OF THE RED CROSS OF RS63 The Red Cross is
a unified aid organization whose goals and tasks concern the fields of health, social policy
and other issues of significance for the society; the status of this organization and its powers
are defined by law and other regulations. Among other things, the Red Cross is active in
health education of citizens, in particular children and youth (Article 4(1)(4)); it works
together with other health, educational and social organizations on organizing prevention
measures (Paragraph 7); and it promotes blood donations, bringing together blood donors
and maintaining records on them (Paragraph 11).




62
     Official Gazette of RS18/99 70/01 51/01 and 51/03
63
     Official Gazette of RS 18/94 and 110/03



30
REGULATION ON THE CONTENTS AND SCOPE OF THE RIGHT TO HEALTH CARE
AND COPAYS64 This Regulation defines the scope, contents and the exercise of the right
to health care provided to the insured within the compulsory health insurance scheme.
Article 8 of this Regulation defines measures to be taken for early detection of disease and
other health conditions. These measures are health education in relation to protection,
preservation and improvement of health; comprehensive control and targeted health checks
of children, school youth, students under 26 and women in relation to pregnancy; health
education on family planning, prevention of pregnancy, testing and treatment of sexually
transmitted diseases, HIV infections and Hepatitis; dental prevention, immunoprofilaxis and
chemoprofilaxis; and legally prescribed measures and procedures relating to prevention,
detection and treatment of HIV infection and prevention of its spreading. Article 16 defines
health care, provision of resources for compulsory health insurance and, for the first time, it
expressly lists examination and treatment with respect to HIV infection.
This Regulation has superseded the 2004 Regulation, which made no reference to HIV
infection.

LAW ON PROTECTION OF POPULATION AGAINST INFECTIOUS DISEASES65 Article 6
lists Syphilis, Hepatitis, Chlamydia, Acquired Immune Deficiency Syndrome (AIDS) and HIV.
A measure for early detection of a disease is the testing of donated blood, donated semen
and donated organs (Article 11). The diseases listed under Article 6 of this Law are
notifiable. Treatment costs, even for uninsured persons, are borne by the RS.

DECISION ON THE MINIMUM HEALTH CARE BENEFIT PACKAGE66 Article 3(2) ensures
full health care for all children under 15 years of age. This care includes no copays required
for any health care costs, in accordance with Article 19 of the Law on Health Care, quoted
earlier.

REGULATION ON THE USE OF HEALTH CARE OUTSIDE RS67 This Regulation defines
the procedure of referral for treatment outside the RS and any related issues, in particular
the costs, the referring authority, etc. Treatment abroad is possible under international
treaties signed with the RS and under reciprocal agreements on free treatment.

LAW ON SOCIAL PROTECTION68 This Law defines social protection beneficiaries, who can
be both minors and adults. The Law also defines the right to allowance and care by another
person, which relates to persons with physical or sense impairments who are unable to
meet their essential life needs on their own and who may be placed in social care
institutions.

LAW ON CHILD CARE69 This Law defines child care, which includes the rights of parents
and children; organized activities which ensure preconditions for an equal level of
satisfaction of children’s developmental needs; aid to the family in achieving its reproductive,
protective, educational and economic function; and preventive health care.

FAMILY LAW70 This Law defines the child as a person under 18, after which it acquires legal
ability to transact business, with the exception of persons who marry before coming of age.
The Law requires the parents to care for the life and health of their children, their upbringing
and education. Special assistance to children without parental care is provided by the

64
   Official Gazette of RS 54/07
65
   Official Gazette of RS 10/95
66
   Official Gazette of RS 21/01
67
   Official Gazette of RS 39/06
68
   Official Gazette of RS 5/93, 15/96, 110/03
69
   Official Gazette of RS 15/96
70
   Official Gazette of RS 54/02


31
custody authority. The registrar is required to advise persons who intend to enter into
marriage to inform each other about their health and to visit a family counseling office.
Article 30 stipulates that a marriage shall be invalid in case one of the spouses was in error
with respect to an essential character feature of the other spouse, which particularly relates
to cases of dangerous and grave diseases, dishonest jobs and convictions for criminal
offenses perpetrated for dishonest reasons. The court of law shall strip of paternal rights any
parents who abuse the child, abuse their parental rights or abandon the child, and who
neglect the child or their parental right.
The custody authority is required to take all required measures to protect personal rights
and interests of the child. If this is in the best interest of the child, the custody authority will
provide assistance to parents in resolving their social, financial or personal situation and
relationship, or will refer them to an appropriate counseling service.
A minor over 16 years of age may admit paternity. If the child is under 16, the paternity
statement is made by the parent or the custodian of the child, subject to the approval of the
custody authority.

LAW ON PROTECTION AGAINST VIOLENCE71 This Law, except for linguistic differences,
is identical to the Law on Protection against Family Violence in FBiH. In addition to this Law,
violent behavior is also sanctioned in the Criminal Code of RS.

LAW ON FREEDOM OF INFORMATION72 This law includes the same provisions as the
Law on Freedom of Information of BiH and FBiH, with linguistic differences.

LAW ON PRIMARY SCHOOL73 Under Article 2, the goals of education include gaining and
developing awareness of the need to preserve health and natural environment as well as
education for democratic, human and cultured relationships among people with full respect
for human rights.

LAW ON SECONDARY EDUCATION74 Under Article 3, the goals of education also include
raising awareness of education at the level of education in the EU member countries, and
the need to have a comprehensive education and to respect child rights, human rights and
fundamental freedoms.

CRIMINAL CODE OF RS75 This Code devotes an entire chapter to juveniles. A juvenile
under 14 years of age cannot be held criminally liable (Article 64). Article 154 defines illegal
abortion as a criminal offense. Paragraph 2 of this Article defines that if such offense is
perpetrated against a person under 16 years of age, and there is no written consent of her
parent, adoptive parent or custodian, the penalty is imprisonment for a term between one
and eight years. In the chapter on criminal offense against sexual integrity, there are specific
sanctions for rape against a minor, including serious health impairment or pregnancy of the
victim. For the criminal offense of sexual abuse of a child (Article 195). Paragraph 3
sanctions the teacher, whether in an institution or home, custodian, adoptive parent,
physician or religious official who have abused their position and committed the criminal
offense against the children entrusted to such person for teaching, upbringing or care.
Paragraph 4 specifically sanctions offenses committed in a particularly cruel or degrading
manner, offenses which involve a high age and maturity disproportion between the victim
and the perpetrator, or severe health impairment or pregnancy of the victim.
In the chapter on criminal offenses against pubic health, Article 211(3) sanctions
transmission of an incurable contagious disease. Other offenses include medical


71
   Official Gazette of RS 118/05
72
   Official Gazette of RS 20/01
73
   Official Gazette of RS 38/04
74
   Official Gazette of RS 38/04
75
   Official Gazette of RS 49/03; 108/04; 37/06


32
malpractice and failure to render medical aid. In the chapter on criminal offenses against
official duties, there is a sanction provided for the criminal offense of disclosure of an official
secret.

CRIMINAL PROCEDURE CODE OF RS76 This code defines that any summoning of a
witness who is a minor under 16 is to be done through the parents or legal counsel, except
in urgent cases and under other circumstances (these circumstances are not listed). The
following persons cannot be heard as witnesses: a person whose statements would violate
the duty of keeping official secrets; a person whose statements would violate the duty of
keeping professional secrets (religious official - confessor, reporter, physician, etc.), unless
such person was relieved of that duty by a special regulation or a statement of the person
whose interests are protected by the secret; and a minor who, in view of his or her age and
mental development, is unable to comprehend the importance of his or her right to refuse to
answer some of the questions (Article 146). The witness may refuse to answer some
questions (Article 148) if such testimony would expose such person to criminal prosecution
(but not to exposure of one’s privacy). The public may be excluded between the initial
session and the end of main hearing by the judge or panel acting ex officio or upon a motion
(Article 371). The reason for such exclusion is protection of personal and intimate life of the
accused or the injured, or protection of the minor or witness.
Article 271 defines special evidentiary rules when dealing with cases of sex crimes; its
Paragraph 1 stipulates that evidence concerning past sexual behavior and the sexual
orientation of the injured party is not admissible.

LAW ON LOCAL GOVERNMENT77 This law defines that the municipality is required to
ensure the meeting of citizen needs in the fields of culture, education, sports, health and
social care, information, etc. (Article 5(1)(8))


2.5. Brčko District
DECISION OF THE HIGH REPRESENTATIVE ON THE ESTABLISHMENT OF THE
DISTRICT78 Pursuant to the General Framework Agreement for Peace in BiH and the
arbitration proceedings for the Brčko area, the High Representative Wolfgang Petrisch
issued a Decision on the establishment of the Brčko District.

STATUTE OF THE BRČKO DISTRICT79 The District is a single administrative unit of local
government existing under the sovereignty of BiH. The Constitution of BiH as well as
relevant laws and decisions of the institutions of BiH are directly applicable throughout the
territory of the District; the laws and decisions of all District authorities must be in conformity
with them. Article 9(1)(g), (i) and (j) defines that functions and powers of the District include:
education, health care and social welfare.
Article 13 specifically underlines human rights and freedoms guaranteed under the
Constitution and laws of BIH, which are also guaranteed to District citizens.

LAW ON HEALTH CARE80 Article 3 defines that all citizens are required to care for their
health. No one is allowed to endanger public health. The citizen is required to take part in all
health-related prevention activities undertaken in his or her place of residence, with a view
to promoting and preserving health and preventing disease, as well as providing full health
care to children and youth, and to women in relation to family planning, pregnancy and

76
   Official Gazette of RS 50/03
77
   Official Gazette of RS 35/99, 20/ 01 and 51/01
78
   Official Gazette of RS 9/00
79
   Official Gazette of RS 13/00
80
   Official Gazette 2/01


33
maternity, and to provision of medicines and other medical aids for health care. Like in the
FBiH and RS, health care is organized as primary, specialist and hospital. In the field of
health care, the District is required to ensure, among other things, prevention and control of
notifiable infectious diseases and the prevention of AIDS. The basic principles of health care
are comprehensiveness, continuity, availability and universal access. Health measures
include health education to improve mental and physical status of citizens and activities on
prevention, early detection and control of contagious and chronic diseases (Article 13).
These measures are implemented pursuant to a plan and program of measures adopted by
the Mayor on a recommendation of the Head of Department for Health, Public Security and
Other Services. Primary health care includes early detection, prevention and eradication of
causes of disease and injury; preservation of health and treatment of family members;
measures for health protection and care and improvement of the health of students, youth,
athletes, and assessments of their fitness for school and work. In exercising their right to
health care, each citizen has an inalienable right to accurate information and advice on any
issue concerning their health, the right to protection of data concerning their health and to
indemnification for any damage caused by inappropriate health services. Article 31 of this
Law grants the right to a family physician or a general practitioner to take appropriate
diagnostic and therapeutic procedures even without patient’s consent if the case involves
suspicion of a contagious disease that poses danger to public health. Article 33 stresses
that health professionals are required to protect information on the health status of the
patient as a professional secret. Any violation of such professional secret qualifies as a
serious violation of the code of medical ethics.

LAW ON HEALTH INSURANCE OF THE DISTRICT81 According to this Law, the insured
include unemployed persons registered with the Employment Service of the District and
persons who are social welfare recipients. The right to exercise compulsory health insurance
rights is enjoyed by family members of the insured, which includes children up to 15 years of
age, and not older than 27 years of age if they are attending full-time education. In case
such persons are temporarily disabled, they are entitled to health insurance during the
period their full-time education is suspended, in accordance with applicable special
regulations.

LAW ON SOCIAL WELFARE82 This Law defines social welfare as an organized activity
aimed at controlling and eradicating the causes and consequences of the state of social
need and at providing aid to citizens and their families who are in such state. Social welfare
recipients also include educationally neglected minors, abused children, and adults in the
state of social need who require social aid for specific reasons.
The law also provides for the right to be placed in an institution for chronically ill persons, as
well as the right to care and assistance at home for persons who need help and care
because of permanent changes to their health status, and who cannot have such care
provided by parents, spouses or children and who do not have personal resources for such
assistance and care. This assistance also includes feeding and house chores.

LAW ON PRIMARY AND SECONDARY EDUCATION83 This Law defines that the main goal
of primary and secondary education, in addition to education and upbringing, is to learn
about moral and esthetic values, to develop awareness of health and environmental
protection, to learn to promote human rights and freedoms, and to prepare for the life in a
society that appreciates the principles of democracy and the rule of law.
A student who is unable to attend school due to serious illness will be provided education at
home, unless he or she is admitted to treatment in a health institution, in which case the
education will be provided there.

81
   Official Gazette 1/02
82
   Official Gazette 1/03
83
   Official Gazette 9/01, 28/03 and 29/04


34
CRIMINAL CODE84 Article 174 defines the criminal offense of infringement of the equality of
individuals and citizens. An essential part of the offense is infringement of rights on the
ground of one’s sexual orientation. The provision on the criminal offense of unauthorized
disclosure of professional secret (Article 184) defines that the physician, dentist and any
other health professional, psychologist or another person will be held liable for disclosing a
secret learnt during the performance of their duties.
Chapter 19 sanctions criminal offenses against sexual freedom and morals. The sanction is
greater if the offense is perpetrated against a minor. Enticing to prostitution is sanctioned
(Article 207), as well as family violence. Chapter 21 sanctions criminal offenses against
public health – transmission of a contagious disease, transmission of a venereal disease
and failure to render medical aid.

CRIMINAL PROCEDURE CODE85 This Code defines, among other things, the persons who
may not be heard as witnesses – they include persons whose statement would violate their
duty of keeping professional secrets, such as physicians, religious officials-confessors, etc.
(Article 82). According to the Law, it is possible to refuse to testify if the person is related up
to a certain degree of kinship. The public is always excluded in proceedings against minors.


2.6. Conclusions and Assessment of Legal Provisions
1. The general assessment of the present legislation in BiH, with constitutions in force
guaranteeing the highest level of protection of human rights and a series of lex specialis
laws that define certain aspects of the life of children, youth and citizens in general, is that it
can provide sufficient protection to adolescents and persons who are living with HIV.
HIV testing is voluntary; the obligation to keep official secret relating to the protection of
privacy should ensure confidentiality; and finally, the testing of donated blood and of
donated organs and tissues intended for transplantation is mandatory.
Refugees in BiH have the same possibilities for testing for and treatment of HIV infection
and STIs as the local population.

2. The problems arise in the implementation of these laws, which are not implemented fully
and/or are not implemented across BiH.
In BiH, there are no efficient mechanisms to control and ensure implementation of all
provisions, sanctioning those who violate the rights of other persons. This effectively leaves
room for potential discrimination.
To illustrate this, we will provide a few reminders:
- In the FBiH, health insurance may be enjoyed by primary/secondary school students and
full-time college/university students under 26 years of age, irrespective of the insurance
status of their parents. In practice, however, this legal provision is not implemented in all
cantons.
- HIV testing in BiH is voluntary, confidential, free of charge and anonymous, if so requested
by the client. In practice, there are cases of compulsory testing of inmates, which means the
testing is not voluntary. HIV testing in the FBiH is always free of charge, confidential and, if
the client wishes so, done anonymously using a code, while the testing in the RS and the
Brčko District is not. Even the testing cost varies in different centers in the RS, depending on
whether the person tested has health coverage, which in itself precludes any anonymity.
On 26 June 2007, the Regulation on the Contents and Scope of the Right to Health Care
and Copays of the RS entered into force. These stipulate the provision of free HIV testing
and treatment; however, as of the time of this reporting, more than one month after the
Regulation had entered into force, health professionals have not heard of it. Tests are free


84
     Official Gazette 10/03, 45/04 and 6/05
85
     Official Gazette of the District 10/03


35
of charge only at the Counseling Service with the Clinic for Infectious Diseases in Banja
Luka.

3. A law on the protection of patients’ rights has not yet been enacted in BiH. Enactment of
this law would ensure equal rights to all citizens in the territory of BiH. This law would also
make it possible to define the lower age limit for minors to visit a physician without
parents/custodians, to have certain interventions performed and to gain access to certain
services.

4. It is interesting to note that the Constitution of BiH, which requires the state to secure the
highest level of internationally recognized human rights and fundamental freedoms, does
not enumerate among these human rights and fundamental freedoms the right to sexual
orientation. This is clearly an omission and should be remedied as soon as possible.




36
3. BRIEF REVIEW OF THE PRACTICE

Sexually transmitted diseases can be diagnosed, and some of them can be treated in
gynecological, skin disease and venereal disease health points and departments for
infectious diseases, while others can be treated in ophthalmologist and dental offices. Still,
there is no doubt that the most experienced people in our country are physicians working at
infectious disease clinics or departments. We therefore focused on interviews with
epidemiologists working in HIV/AIDS counseling offices at clinics in Banja Luka, Tuzla and
Sarajevo, and with HIV/AIDS coordinators.
The first impression from interviewing these people is their great knowledge, experience and
apparent enthusiasm. According to them, the enthusiasm is due to the reasonable success
of their counseling offices. They believe that persons who come to the counseling offices
show a clear degree of responsibility for their own health and the health of their families and
especially their partners. It is most often the case that persons who have been to the
counseling offices refer others who might need testing and/or treatment. Visits to the
counseling office are regular and scheduled.


3.1. Interviews with Physicians
Docent Zdravka Kezić MD, PhD, Head of the Infectious Disease Clinic of the Clinical
Center in Banja Luka. According to data of the Counseling Office of the Infectious
Disease Clinic of the Banja Luka Clinical Center, by the end of 2006 in the Republika
Srpska there have been 52 persons registered as living with HIV/AIDS, 15 of which have
died since 1986 from the consequences of their HIV infection.
She believes that these data do not reflect the actual situation and her guess is that the
number of infected people is higher; however, this number is still lower than that in the
neighboring countries. In most of the cases, the infected are between 25 and 29 years of
aged, with some aged between 40 and 44.
On 1 June 2007, an HIV Counseling Office was opened at the Infectious Disease Clinic. The
team working at the Counseling Offices includes an epidemiologist, nurse, psychologist and
social worker. Information available to visitors of the Counseling Office concerns risk
behavior and HIV infections, Hepatitis C, Hepatitis B, advice on testing (when to test). It is
also possible to take blood samples for testing, which is free of charge and anonymous if the
visitors wish so (a code is used), and then the visitors can take the test results and talk to a
professional about them and the potential need to retest after a certain period. Finally, the
visitors can get advice on how to change their behavior (how to protect themselves, how to
reduce harm, etc.). The psychologist provides professional assistance and support to
persons living with HIV, and chronic Hepatitis C or B. The social worker provides
professional assistance to infected people and their families in cooperation with other social
workers in the field and the Center for Social Work.
Since 1 June 2007, the services of the Counseling Office have been sought by some 30
people. The response rate is low due to lack of information and experience, but also
due to the fear of stigma and discrimination.

In the RS, under the surveillance of epidemiologists from the Infectious Disease Clinic of the
Banja Luka Clinical Center, which is also the reference center for HIV/AIDS and chronic
Hepatitis B and C, there are eight persons living with HIV who are currently being treated
with antiretroviral therapy; 50 patients with chronic Hepatitis C who are being treated with a
combined therapy of pegylated interferon and ribavirin; and 20 patients with chronic active
Hepatitis B who are treated with the antiviral drug lamivudine. Since 2006, these drugs have
been purchased by the Health Insurance Fund of the RS.

The number of people infected with Hepatitis B and Hepatitis C is high. The World Health
Organization (WHO) estimates that there are around 40,000 people in BiH infected with
Hepatitis C virus, and some 30,000 infected with Hepatitis B virus.


37
Dr. Kezić believes such a high number of people infected with Hepatitis C is due to the large
number of transfusions performing during the war, when the blood was not tested for HCV.
HCV (chronic Hepatitis) is a disease which, over a certain period of time (10-30 years),
transforms without any clear or visible signs of disease into cirrhosis of the liver or
hepatocellular carcinoma.

Dr. Kezić noted in particular the general lack of basic knowledge of HIV/AIDS and STIs
among the general public. This leads her to believe that the media have a very significant
role in fighting prejudice, in educating the population and popularizing these kinds of
services. This should result in more requests for testing and in a change of behavior in the
population from risk behavior to more responsible behavior towards oneself and others,
using protection and applying all other preventive measures. She believes all this would lead
to a change in the attitude of the community towards the infected people, who are now
facing isolation and discrimination.

Dr. Sana Šabović, the Infectious Disease Clinic in Tuzla. The Infectious Disease Clinic in
Tuzla has one patient aged between 10 and 26 who is treated for AIDS.
The testing at this Clinic, which has its own HIV/AIDS Counseling Office, is free of charge,
and the treatment is financed by the Federation Solidarity Fund and also from resources of
the Cantonal Health Insurance Fund. The new generation medications are used (Highly
Active Anti-Retroviral Therapy - HAART), recommended by WHO.
She believes the state must find systemic solutions for protection against HIV infection and
she believes the opportunity to do this is the implementation of a Global Fund project
granted to BiH for the period of the next five years.

Dr. Vesna Hadžiosmanović of the Infectious Disease Clinic of the University of
Sarajevo Clinical Center. She believes that the number of people infected and diseased
with HIV/AIDS and STIs is significantly higher than the official number. This number doubles
each year. The reason for such unrealistic statistics is that a great number of those infected
have never had any examination or tests and are unaware of their status.

The attitude towards HIV infection/AIDS and STIs in our society is still riddled with prejudice.
Even health professionals do not know enough about this issue. She has heard of cases
where human rights of patients or their family members were violated. In 2006, a girl,
daughter to a HIV positive father and a negative mother, faced this kind of discrimination in
her kindergarten. Both the staff and some parents asked that the girl withdraw from the
kindergarten.

It is precisely this lack of knowledge that causes prejudice, and this prompted the Clinic to
initiate lectures for students of the Schools of Medicine and Dental Medicine in Sarajevo, as
well as health professionals working in the Clinic itself.
There is even less data on people infected with some sexually transmitted diseases such as
Syphilis and Chlamydia than those infected with HIV/AIDS or Hepatitis C. This is perhaps
due to the fact that people can seek help in other facilities, such as gynecological and skin
and venereal disease health points, whether private or public. There is a legal obligation for
everyone to report any infection, but this obligation is obviously not fulfilled in practice.

It is a well-known fact that for all health interventions on minors, health professionals ask for
consent or presence of their parents/custodians. With respect to HIV and STI testing, she
believes it would be good to provide treatment to older minors, i.e. persons aged 16 and
above, without the presence of their parents/custodians. Her experience tells her that this
would result in a greater number of adolescents tested.




38
Each testing at the Counseling Office is free of charge and anonymous; however, if the
results are positive, the patient is always advised to be frank with his or her family and to
inform the partner, including encouraging their partner’s testing and treatment. In case the
patient refuses such advice, he or she is cautioned that this would constitute violation of the
other person’s rights because it would affect his or her health. Dr. Hadžiosmanović has had
good experience with patients and their families coming to the Counseling Office, so she
has never been forced to act against the will of her patients.

All the diseased were infected abroad. For instance, a few of the infected have spent some
years working in Russia. Most of them are MSM, and none of them have been infected with
HIV as an IDU by using someone else’s needle, syringe or other equipment used to prepare
drugs.
On the other hand, Hepatitis C infection is most common in this very group, the injection
drug users.

Dr. Hadžiosmanović underlines the possibility of becoming infected with HIV by accident,
through infected blood in cases where blood tests showed no antibodies (the blood was
taken during the “window period”). This occurs when certain procedures, relating to blood
testing or to the use of single-use medical equipment, or the use of non-sterile instruments,
were not adhered to. She has heard of the case of an older patient in the Repubic of
Croatia, who was not long ago infected through transfusion of infected blood.
There are a few HIV positive persons employed with the BiH Army. Their identity is strictly
confidential for fear they could lose their job due to prejudice that is still very strong. It is
quite certain these people would be discriminated against.

Dr. Hadžiosmanović believes it is necessary to educate young people, starting from
kindergarten age to primary and secondary schools. This also requires a stronger
connection between the education and health sectors.
It would not be serious to believe that this issue can be resolved without links between the
highly profiled non-governmental sector and the governmental sector, i.e. professionals. Her
ten-year experience has taught her that the non-governmental sector and peer educators
have not carefully selected those who are best and most educated, who can act from the
position of authority among their peers when presenting such an important subject.
She is aware of the rising prostitution in BiH and of a worrying rise in MSM prostitution. She
has even heard of cases of boys selling themselves for money to adult males, contrary to
their actual sexual orientation.


Dr. Zlatko Čardaklija, National HIV/AIDS Coordinator in FBiH. The testing in FBiH is free
of charge, voluntary and completely anonymous. The data on infected and diseased people
for the whole of BiH are maintained at the Public Health Institute of FBiH in Mostar.

There have been no recorded cases in BiH of an HVI infection through blood transfusion.

For treatment of people infected with HIV who need treatment, as well as those with AIDS
and STIs, new generations of drugs are used in accordance with the WHO
recommendation. In BiH, there have never been any tests performed without the consent of
the patient, and they strictly adhere to the Principles and Rules defined in the document
“Voluntary Counseling and Testing /VCT” of December 2004, which was made with the
support of UNICEF.




39
He does not consider the health system reforms a success. Prevention and treatment for
children, adolescents and young adults within family medicine is not a solution. He believes
school physicians could play a significant role, but these would not be the same as those in
former school health points; instead, they would be physicians in charge of two to three
branch schools. He believes the rationale is that such physician would be able to monitor
the health of these students and take quick action in case of any infections or epidemics,
and he or she would also be able to act preventively.

He does not believe that children from incomplete families, Roma children, or refugee and
displaced children constitute special risk groups with respect to HIV/AIDS and STIs. His
opinion is that risk children do not exist; there is only risk behavior. He considers any study
focused on such isolated population to be a reflection of prejudice and discrimination. This
has also been the position of the WHO for several years now.
He is an advocate of the legalization of prostitution because there are clear indications that
illegal prostitution in BiH is rising, in particular the prostitution involving minors, and lately
there has been a growing number of instances of boys engaging in prostitution with adult
males.

Persons who have died of AIDS are buried in the same way as people with contagious
diseases, which is not warranted because the infection cannot me transmitted after death.

Dr. Jasna Šadić, HIV/AIDS Coordinator in the Brčko District. The Health Institute of the
Ditrict has not registered any persons infected with HIV aged between 10 and 19 or 26. The
test costs KM 20, to be paid by the person tested; any potential treatment would be carried
out at the Infectious Disease Clinic in Tuzla and would by paid by the District. To inform the
youth, there is written material that is disseminated at the HIV/AIDS Counseling Office.

Dr. Bakir Nakaš, Epidemiologist Specialist, Former HIV/AIDS Coordinator in FBiH. He
believes that the existence of numerous mutually unrelated projects on HIV/AIDS and STIs
conducted by the non-governmental sector has resulted in an unnecessary wasting of a
large amount of resources, which could have been spent better to the benefit of those who
were supposed to be the target of such projects.

There is no doubt that BiH society is full of prejudice stemming from ignorance. Education is
essential, but it has to be made more serious through participation of professionals along
with the non-governmental sector. He believes that the Red Cross Society and the
corresponding entity organizations have been unjustly excluded from the education process,
which is supposed to be one of their tasks. This is the same as

organization of blood donations, where they have a long tradition. In addition, they are
networked into the international Red Cross organization.

Dr. Sadik Ploskić, Psychiastrist Specialist With the Institute of Alcoholism and Other
Addictions of the Sarajevo Canton. He believes that persons who are living with HIV/AIDS
must be treated from the perceptive of mental health protection. This requires teamwork and
the involvement of psychiatrists in the operation of Counseling Offices at Infectious Disease
Clinics, where persons with HIV/AIDS are treated.




40
At the present moment, psychiatrists are only involved or informed when the person
concerned is being treated for drug addition at the Institute and is at the same time infected
with HIV.

His years of experience as a physician in the country and abroad give him the right to
advocate free exchange of needles for registered intravenous drug addicts as well as the
legalization of prostitution.

It is also interesting to see the information about the work of family medicine physicians, Dr.
Mirjana Malinović-Bajić and Dr. Vesna Bujdo-Popović. Both physicians have as many as
2,000 patients each. One of the doctors had to fight hard to prevent the shutting-down of a
nearby ER facility, which would have meant an additional obligation for her health post.
There were also some “threats” that the pediatric services would no longer be offered at the
health post and would only be available at the clinic. This has not happened, for the time
being.

Some three years ago, as part of their own training within a project funded by a Canadian
donor, these physicians drafted some material under the motto “It’s better to prevent,
because it cannot be cured” intended to inform adolescents about HIV/AIDS and STIs. To
print this material and disseminate it together with condoms among adolescents in their
health points, they donated their own money. Due to limited resources, the number of copies
was also very limited. The material is presented as a flier and includes concise information
intended for adolescents about the ways HIV/AIDS can and cannot be transmitted.


3.2. The Interview at a Center for Social Work
An interview was also conducted at the Center for Social Work of the Sarajevo Canton. The
only information they have had so far concerns a male person with AIDS, who was over 26
years of age. This person was released from the hospital and accommodation for him was
sought through the Social Work Center.
In spite of being able to pay the rent for his accommodation, he was unable to find any
private apartments in Sarajevo because of his disease. The Center had no accommodation
of its own available. They could not help him, and in the meantime the patient has died.

They believe that the infected or the diseased could be their concern only if these people
were also in the state of social need.
The social worker with many years of experience who recalled this case also recalled that
some members of their staff were confused because of their ignorance of AIDS and of how
the patient should be treated. She believes social workers must be trained about HIV/AIDS.


3.3. The Interview with a Judge
We have interviewed Jasmina Kosović, a judge dealing with criminal cases with the
Cantonal Court in Sarajevo, about possible violations of the right to privacy of the persons
infected with HIV/AIDS. In spite of her many years of service, she has never had any
criminal proceedings, either as an individual judge or a member of a panel, that would
involve transmission of HIV or parties infected with HIV, whether minors or adults, and
where protection of their privacy would be of great importance.




41
She knows that the Court has granted approvals on several occasions to take an inmate out
of the prison, who was always an adult (a few of them under 26), in order to be tested for
HIV/AIDS. The prison sought approval for this in writing as it was entitled to do so on
account of its obligation to care for the health of inmates. Fortunately, all HIV test results
were negative.


3.4. Interviews in NGOs
The Global Fund to Fight AIDS, Tuberculosis and Malaria (GFATM) has granted $11 million
for an HIV/AIDS Project for which BiH applied with this institution. Within the project, BiH is
to work over a period of five years on implementing seven goals aimed at prevention and
treatment of young people, including the populations that are at most risk of infection (MSM,
female sexual workers, injection drug users-IDUs, Roma, etc). UNDP86 has an active role in
this project as it is the primary recipient. UNICEF and UNFPA87 are providing support, along
with local institutions and non-governmental organizations that are involved in direct
implementation of project activities targeted at the above populations.

Željka Mudrovčić, Assistant Representative, Unfpa BiH. She believes that the youth
friendly health services (YFHS), established in 2003 in Bihać, Brčko, Banja Luka and Mostar
with active participation of non-governmental organizations Nova Nada, Omladinski centar
Vermont, Zdravo odrastanje and OKC Abrašević (from the above cities, listed respectively),
can serve as a good model to provide assistance to children, adolescents and young adults
to gain information about the protection against and treatment of HIV infections and STIs. In
the near future, the same centers are to be opened in Zenica, Bijeljina, Foča, Banja Luka,
and another one in Tuzla, so that by the end of the Global Fund project, there should be a
total of 20.

In order to strengthen youth friendly health services (YFHS), UNFPA supports the opening
of peer educator clubs in all secondary schools, whose activities would be aimed at referring
young people to YFHS in their cities.

They have financed the printing of material entitled Improvement of Sexual and
Reproductive Health of Young People in BiH – golden rule: protect yourself, think of others.

Irena Puvača, Association XY88/APOHA, Sarajevo. This organization includes a youth
friendly health service (YFHS), which has not been organized by UNFPA and is based on a
completely different concept. This health service for the youth is not related to any health
institution; rather, it is tied to this NGO, is located in Sarajevo and has its own gynecological
health post. The age or insurance status are not a precondition to come independently for
an examination. They also receive patients from all of BiH. The testing is free of charge for
everyone. They have an excellent cooperation with the Infectious Disease Clinic in
Sarajevo. The XY Association implemented the project establishing APOHA89 and
registering it at the state level. This was done in cooperation with the main donar Project
Hope, as well as Swedish organization SIDA and the Department for International
Development with the UK Embassy-DFID, and with the support of the Ministries of Health of
FBiH and RS. APOHA (Asocijacija za Podršku Oboljelim od HIV/AIDS-a u BiH –
Association for Support to People with HIV/AIDS in BiH) was established on 1 December
2004, the World AIDS Day, with a view to gathering and providing support to persons

86
   http://undp.ba
87
   http://unfpa.org/hiv/index.htm
88
   http://www.xy.com.ba
89
   http://www.xybh.orgapoha.html


42
infected with HIV or having AIDS. In addition to their activities on prevention and support to
persons with HIV/AIDS, the association works to improve the quality of their life and their
social position, reducing the stigma and prejudice against this population.

APOHA is working to protect the rights of persons who are living with HIV/AIDS and of their
families. To achieve this, APOHA is carrying out continuous education of the persons who
are living with HIV/AIDS and of their families, providing social and psychosocial assistance
free of charge. Working among the general public, APOHA promotes new knowledge about
HIV/AIDS and other sexually transmitted infections; provides information on the status of
sexual and reproductive health; educates the general public; and informs and educates
health professionals.

APOHA conducted a survey to assess the situation and needs of persons who are living
with HIV/AIDS. The survey was carried out on 13 infected/diseased persons across BiH.
One respondent was the custodian of a HIV positive four-year old boy. Of the 12 employed
persons in the survey, two of them lost their jobs because of HIV/AIDS, while the other 10
are hiding the information on their HIV status. Medications are given on a regular basis to 10
persons, while three persons in the RS sometimes have to wait for their medicines. One of
them was homeless for six months because of the disease. In this survey, the respondents
from the RS said they should be helped to buy medicines by the Solidarity Fund of the RS
(they were interviewed before the therapy became free of charge in the RS).

AKCIJA PROTIV SIDE (Action Against Aids), Banja Luka.90 Following a period of working
on information and prevention, this non-governmental organization has focused on providing
practical assistance to persons infected with HIV or having AIDS. Their first focus is the
population aged 10 to 26, but they do not set any age limits if a person is infected.

Through this organization, people can be tested for HIV free of charge. Otherwise, testing
costs KM 90 for uninsured persons and 20-30 percent less for persons with health
coverage, depending on the testing location.

VERMONT91, Brčko. This is an independent, non-governmental and not-for-profit
association of citizens whose activities include assistance to and improvement of the
position of young people in the social, economic, humanitarian, cultural, sports,
technological and other fields, based on the principles of democracy and political pluralism.
They have been working actively with the youth since 11 April 1993. The goals of their
center are: affirmation of young people and their engagement in the society; protection and
promotion of the rights of children and young people; cooperation with national and
international associations and organizations; achievement of cooperation with local
authorities and inclusion of the youth in the decision-making process; and constructive
planning of their free time.

The NGO has also specialized in prevention in the health field.


3.5. Publications
Publications listed below were available to the researcher while preparing this review.
1. HIV/AIDS Learn MoreA guide for young people in BiH on HIV/AIDS dangers, text
prepared by the Aid Organization Duga, a free copy.


90
     aaa@blic.net
91
     http://ngo.ba/comprofiler/017sutra.html


43
2. All You Need to Know About HIV/AIDS, issued by Mladi Protiv Side (Youth Against AIDS),
2002.
3. Health Education Models in Schools on HIV/AIDS Prevention, a group of authors: H.
Kulenović, J. Dizdarević, M. Haračić and S. Puvačić, 2001.
4. An HIV/AIDS Information Guide, prepared by the Federal Ministry of Health and the
National Committee for HIV/AIDS Prevention, International Center for Migration and Health,
Centro Riferimento AIDS Ospedale “L.Spallanzani”, with the support of Cooperazione
Italiana.
5. AIDS, a publication of the Regional Health Education Project of the Soros Foundation
6. AIDS – Don’t Die Because of Ignorane, issued by the Ministry of Health of the Republic of
Croatia and UNICEF
7. Leaflet entitled HIV/AIDS Testing, How to Test and Where?, supported by World Vision
8. Other articles and special reports in monthly magazines (VITA, DOKTOR)

While it is certain that each of these publications is informative, there are clear differences in
their methodological approaches. Some of these materials also list places for free testing,
which unfortunately is not accurate information.
Due to the comprehensive information provided and the style accessible to young people,
we can set apart the publication entitled Health Education Models in Schools on HIV/AIDS
Prevention by a group of authors, issued by the School of Medicine in Sarajevo; AIDS –
Don’t Die Because of Ignorance, issued by the Ministry of Health of the Republic of Croatia
and UNICEF; and finally, the clear and simple flyer It’s better to prevent, because it cannot
be cured by Dr. Mirjana Malinović-Bajić and Dr. Vesne Bujdo – Popović.


3.6. The Mass Media
The mass media can be a very powerful force in informing the youth about health protection,
including the ways to combat HIV/AIDS and STIs. The issue of information about HIV/AIDS
and STIs is not linked to health care only; rather, it has to be viewed in the context of social,
economical and political development of a society.

The mass media can reach a large portion of all segments of the population – rural or urban,
rich or poor, old or young, women or men, laymen or specialists, politicians or the
constituency. Therefore, it can raise awareness of HIV/AIDS, which would be a direct
contribution to HIV/AIDS prevention. One feature of good reporting is to reduce harm and
minimize anxiety of the general public whenever possible.

The International Organization for Migration (IOM) made a study entitled “Mass
Communications Media and HIV/AIDS in BiH” in June 2006, which analyzes five daily
newspapers, five weeklies, one bi-weekly magazine and five TV stations. The general
conclusion on news reporting in 2005 was that overall very little information on HIV/AIDS
was produced.
The activities of the Mediacentar in Sarajevo are worth mentioning. Aware of the role of
reporters as advocates of accurate information, the Mediacenter organized training for
media representatives in 2005 to inform them of the need to use the right terminology in
their reports on HIV/AIDS and STIs. Another goal was to contribute to investigative reporting
so that this reporting can teach people about health behavior and prevention of HIV/AIDS,
as well as protection and care for people infected with HIV/AIDS.

Appreciating the possible ways in which human rights of persons with HIV/AIDS and STIs
can be violated, the Deputy Human Rights Ombudsman of FBiH also took part in the
reporter training.




44
3.7. Research among Adolescents and Young Adults
For the purposes of this review of legislation, policies and practices, a testing was done as
part of activities in the EUROINFO Centers in Banja Luka, Brčko and Mostar, whose task
was to provide information on protection of human rights in the EU. The first round of testing
included 49 persons aged 14 to 26, and the aim was to assess their knowledge of HIV/AIDS
and STIs and the way they gain information and access services. This small sample was not
representative, but it served to obtain more important information and to test the
questionnaire we developed for this purpose. The second round of data collection was done
through the amended questionnaire in the territory of Mostar, the sample being 39
respondents. The amended questionnaire proved well suited to obtain information on what
these young people needed in relation to the protection of their rights and access to health
services.

The first survey through EUROINFO Centers was done by means of a questionnaire with 14
questions. All but two questions were based on multiple choice. They related to the degree
of information about HIV/AIDS and STIs; the transmission; the method and place of testing
and access to information; and the place to come for more information, for certain health
cervices or in case of infection.

The educational structure of respondents ranged from primary school to the university level.
All respondents believed they needed additional information with respect to HIV/AIDS and
STIs, as well as to options of access to health services. They thus showed their maturity and
awareness of this issue, but they also believed they were not well informed.
Answering the question on who they want to provide the information, 55 percent (27
respondents) replied “school”, 51 percent (25) replied “health institutions”, 26.5 percent (13)
replied “family” and 16.3 percent (8) replied “NGOs”, i.e. within their programs and projects.
They chose more than one answer, and their choice showed they trusted the institutions
whose primary task was to provide such information.
With respect to the question on the way in which HIV testing is done, only one answer was
incorrect.
As a place where the testing services can be obtained, they listed health institutions, with a
single “do not know” answer.
With respect to HIV infection, 81 percent (40 respondents) believed that assistance should
be sought from a physician or a health institution; for the remaining 19 percent (one from
parents, three do not know, one no help possible and four no answer), we can consider
them insufficiently informed about HIV infection, about options and institutions available, and
about the fact that one can live with HIV for a number of years.
With respect to the existence of youth-friendly health services (YFHS), neither the
respondents nor the staff of centers for social work, with the exception of two or three
persons, knew of their existence, not even in the cities where these services were available.


During the second survey conducted in Mostar in September 2007 following the round table
entitled “It’s better to prevent, because it cannot be cured”, a pilot survey was carried out
with 39 respondents. All of them were university students, aged 21 to 22 (second year
students of the School of Law of the Džemal Bijedić University, Mostar).
The results showed that 76.9 percent (30 respondents) believed persons infected with HIV
or having AIDS or STIs were discriminated against in all segments of the society, the reason
being fear, and this result should be viewed in light of their lack of information on virus
transmission.
In addition, 79.48 percent (31 respondents) believed that exchange of needles for registered
injection drug users was one of the ways to control the infection. 84.6 percent (33
respondents) believed that the age limit for consent to medical intervention should be
lowered from 18 to 16 years of age, and the same number of respondents thought this


45
would increase the number of voluntary tests. 72 percent (28 respondents) believed the
right to sexual orientation should be included in the enumeration of guaranteed human
rights.
As many as 97.4 percent respondents found the interactive workshop/lecture useful, while
79.48 percent thought this approach was most suited to inform the youth.

In the UNICEF RAR study in 2002, the respondents listed the following sources of
information on HIV/AIDS and STIs: as many as 44 percent in the family, 24 percent through
the mass media, and 20 percent from peers. The percentage of those who listed school as a
source of information was negligible.

Based on these findings, we can conclude that young persons, especially adolescents, are
insufficiently informed about HIV/AIDS and STIs. The sample also showed a high degree of
ignorance of youth friendly health services, in spite of their traditionally high confidence in
health institutions. They know that HIV testing can be done at these institutions, and they
expect these institutions to provide necessary information on reproductive health, HIV/AIDS
and STIs. This indicates that efforts should be focused on establishing youth-friendly health
services and on promoting them and their services.
Family medicine physicians should also be relied on in order to achieve better access to
information and services for adolescents and this should be done via meetings organized in
their schools or in other meetings of an open type in their local communities.
There is an obvious need to work against the social taboos related to reproductive health
and the protection against infections. There is no doubt that the role the mass media and
education system can play here is rather significant. This could help establish more candid
relationships within the family and greater possibilities for discussions and exchange of
information concerning reproductive health, HIV/STIs and protection. At the same time, the
family should serve as a support in resolving any problems arising from a potential infection.
Young people largely expect to receive information through the school system, which is also
planned under standards for class teaching. Considering that the subjects are only outlined
in these plans, there is the issue of how these are treated in different schools and
environments. It might depend on personal initiative of the homeroom teacher because the
information is not incorporated in curricula in a unified way and is not mandatory within a
subject. For this reason, the pedagogical institutes/ministries of education would have to
control implementation of thematic lectures related to the protection against HIV/AIDS and
STIs. There is no doubt that the education system would have to sufficiently cover this
significant field in order to achieve a pedagogically suitable, harmonized and accessible
approach to this information.

During 2007, a lot of media attention was paid to the large number of abortions (more than
1,200 in the Sarajevo Canton in 2006), including a number of underage abortions. This
clearly indicates, among other things, the ignorance of reproductive health, which is yet
another argument for those responsible in educational institutions to organize adequate and
continuous information for the youth about the issues that affect their health.
Peer education programs within schools are rare. They are mostly organized by NGOs
through projects funded by foreign donors that cannot be sustained independently.
However, in some places this form of information (e.g. in Sarajevo) proved to be a good way
to communicate information to the youth. At any rate, these programs must be verified by
competent pedagogical institutions.




46
3.8. Conclusions and Assessment of the Practice
1. The general assessment of the practice is that it is not consistent across BiH. HIV/AIDS
testing and treatment is free of charge in the FBiH, but it is not so in the Brčko District. In the
RS, it is definitely free of charge only in the Counseling Office in Banja Luka, while in other
places it was not free as of the time this report was written.

2. All medical interventions on a minor, including HIV testing, require the consent of the
parent/custodian.
This provision is clearly not in line with some of the conventions and laws. It is inconsistent,
first and foremost, with the Convention on the Rights of the Child, which has the legal force
of a constitutional norm in BiH and grants the child the right to express his or her views in all
matters affecting the child, as well as to be fully informed, depending solely on his or her
degree of maturity. The practice is also not harmonized with the Convention on Human
Rights and Biomedicine, with Additional Protocols. In the FBiH, harmonization is needed
with the Family Law, Criminal Procedure Code of FBiH, Labor Law of FBiH and the Criminal
Code of FBiH. It is worth remembering here that the Family Law stipulates that limited legal
ability to transact business is acquired at age 14 and thus the child can take actions
beneficial to his or her interests; at age 16, the child may request permission to enter into a
marriage, and can even take certain procedural actions as early as age 14. Harmonization is
needed with the Labor Law because the child may become gainfully employed at age 15,
and with the Criminal Code because the child may be held criminally liable above age of 14.
As far as the RS is concerned, a minor of 15 in the RS who is gainfully employed may
dispose independently of his or her income, making contributions to his or her sustenance,
upbringing and education. In addition, the Criminal Code of RS states that a minor who has
reached 14 years of age may be held criminally liable.

3. Risk groups do not exist; there is only risk behavior. This is supported by concrete
examples from HIV/AIDS Counseling Offices, and it is also a general position taken by
WHO. It is therefore discriminating to classify Roma, children without parental care, refuges,
displaced persons, etc. as vulnerable groups. One could generally say that youth, in
particular adolescents in the period of growth and development, are a vulnerable group. This
is due to the period in which they adopt certain behavior patterns, choose their lifestyle, and
show increased criticism and rebellion towards the world of adults.

4. According to the present legislation in BiH, curricula includes health education units as
part of class teaching, and perhaps as part of courses in biology and health and physical
culture, depending on whether the school concerned is primary or secondary. Due to the
divisions present in the education system, the practice in schools is not consistent. It is
necessary as a matter of urgency to ensure that regular teaching includes consistent and
continuous provision of information to the youth about the protection of their health.

5. Non-governmental organizations are also involved in education activities on the
prevention of HIV/AIDS and STIs in educational institutions. Their engagement is
occasionally arranged outside the system and depends on direct negotiations with the
school. Educational and health institutions rarely make systematic assessment of such NGO
engagement. Cooperation among governmental organizations, non-governmental
organizations and volunteers would ensure a higher quality in the education on HIV/AIDS,
STIs and reproductive health across BiH. To this end, a continuous evaluation of all these
programs by teams of health and education experts is required.

6. Some of the ongoing activities in BiH are undertaken within the Global Fund project.
Since BiH is a country with a low level of infection, this would be the right time to take all
prevention activities.



47
All participating parties are responsible for the success of this task, and in particular UNDP,
UNICEF and other UN agencies in BiH; the Ministry of Civil Affairs of BiH; the Ministry of
Human Rights of BiH; the Council of Ministers; the Ministry of Health of FBiH; the Ministry of
Health and Social Protection of RS; and any other authorities in the fields of health,
education and social care, as well as NGOs that are involved in the project. The general
public already has the impression that the parties in this Project lack agreement,
synchronization and healthy competition in their work. The clock is ticking and some
concrete results are expected to be shown in 2007.

7. The mass media in BiH are not sufficiently interested in HIV/AIDS and STIs. In the
struggle to protect human rights all over the world, the mass media have always been the
most efficient weapon. The mass media in BiH must also be a strong force in combating
prejudice on HIV/AIDS and STIs.

In light of the general WHO message on the World Health Day 2007, “Invest in health, build
a safer future”, this analysis of legislation and practice in BiH provides to the competent
authorities the following recommendations.




48
4. RECOMMENDATIONS

To the Ministry of Civil Affairs of BiH

1. To enact the Law on Rights of Patients in BiH as a matter of urgency.
This Law should serve to define, among other things, the lower age limit for minors who can,
alone and without the consent of their parents/custodians, agree to a medical intervention.
The arguments in favor of this are:
- the present legislation is not in line with the provisions of the Convention on the Rights of
the Child and other international standards for the protection of human rights, as well as lex
specialis local regulations
- the opinion of experts, physicians and social workers is that this limit should be 16 years of
age
- physicians’ experience indicates that lowering this limit to 16 years of age would increase
the number of persons who request HIV/AIDS and STI testing, which is the goal of
protection against these infections.

2. To consider the options to establish the position of a school physician who would cover
two to three branch schools. Family medicine cannot be reasonably expected to focus
specifically on this population, which does need health surveillance.

3. To draft Strategy to Combat Drug Abuse in BiH.
This strategy would define, among other things, the exchange of needles for registered
intravenous drug addicts to prevent the use of used needles infected with Hepatitis C or
HIV. The main argument is the fact that infection is transmitted because the same needle is
used repeatedly. This practice is already applied elsewhere in the world and has proven to
be quite effective. In the Republic of Croatia, proposed amendments to the Criminal Code
suggest that provision of an infected needle to another person be deemed a criminal
offense.
While there are no legal obstacles to establish such exchange centers in BiH, they have not
been formed to date under the control of authorities, and the Strategy is expected to define
their establishment and activities.

4. To work together with ministries of health/education and install condom vending machines
in campuses and in other places in general where they will be easily accessible to the young
population.


To the Council of Ministers of BiH

1. To adopt a Decision on new members of the Council for Children as a matter of urgency,
and to provide for the election of new members, which will ensure their continuous work.

2. To implement recommendations of the Action Plan for Children 2002-2010 on the urgent
establishment of a fund or a foundation for children at the level of BiH, so as to eliminate the
present unequal access to health protection, which is obvious across BiH.


To the Council of Ministers of BiH and the HIV/AIDS Advisory Board in BiH

To start implementing the activities that were set as the goals of the HIV/AIDS Prevention
and Combat Strategy in BiH 2004-2009.
In accordance with its obligation related to Article 14 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms to ensure the enjoyment of human
rights and fundamental freedoms without discrimination on any ground, the state has



49
adopted the BiH HIV/AIDS Prevention and Combat Strategy 2004-2009. The foundation of
this strategy is strategic goal 1, which provides for education of school children and young
people and groups engaging in risk behavior. This education provides for the introduction of
standardized programs for teachers, school children and young people, including basic
knowledge and prevention of HIV/AIDS and STIs, prevention of drug abuse and safe sexual
behavior promotion programs for school children and young people. This goal also provides
for a continuous testing of blood and blood derivatives for HIV and Hepatitis B.
Strategic goal 2 aims at improving the present system of health care and psycho-social
care, given the absence of an appropriate system of treatment, care and support for people
who are living with HIV/AIDS.
Strategic goal 3 provides for the creation of a legal framework for the respect for and
protection of human rights and ethical principles for persons who are living with HIV/AIDS.
The achievement of these goals is closely related to a series of other activities in the fields
of health care, education and social welfare. The strategy has now almost reached one half
of its planned period.


To the Ministry of Human Rights of BiH

To consider as a matter of urgency the enacting of a piece of legislation to decriminalize
prostitution.
It is an undeniable fact that there is illegal prostitution of men and women, and even of
children, in BiH. It is also a fact that due to economic reasons, this prostitution is growing
virtually on a daily basis and the lower age limit for engaging in prostitution is getting lower
and lower. Decriminalization would make it possible to control the health and safety of these
persons, who are now completely unprotected and at risk for their life and health, and are
sometimes in the position of slavery to those who organize prostitution.


To the Institution of Ombudsman of BiH

1. To act in line of its duties and make recommendations to authorities and the mass media,
lobbying for the protection of all rights of citizens provided for by law that are not
implemented in practice (in particular: in the FBiH - the right to the status of an insured
person for full-time university students under 26 in the event they are not covered through
their parents; in the RS - the right to HIV testing free of charge, etc.)

2. To act in line of its duties and make recommendations to authorities and the mass media,
lobbying for harmonization of all legal provisions in the two entities and the District that
concern the constitutionally guaranteed human rights, in particular the unequal exercise of
the right to health and social care for children and citizens in BiH (e.g. health insurance for
full-time students under 26 in the RS and the District, to have the status of an insured party)

3. To act in line of its duties and make recommendations to authorities and the mass media,
lobbying for the right to sexual orientation as one of the fundamental human rights


To the Red Cross Society of BiH

In coordination with the Ministry of Civil Affairs and the HIV/AIDS Advisory Board, to use its
network and urgently take part in the health education process, including HIV/AIDS and
STIs, for everyone from preschool children to the school and university population and to all
citizens of BiH. This activity of the Society is in line with the programs of the International
Red Cross, one of its goals being combating HIV/AIDS and STIs. This is also in line with
their traditional activities of organizing blood donations.


50
To Ministries of Social Welfare/Protection of both Entities and the District

To train social workers in the social work centers and services in the field of human rights
and the rights of persons with HIV/AIDS, in particular the right to accommodation,
assistance in housekeeping, feeding, care for children, placement of children in preschool
institutions, etc. (especially the provisions of the Convention, the European Social Charter),
which all falls within the remit of this sector.


To Ministries of Education on all levels

1. To adjust the curricula in colleges and university schools for teachers in order to train
teacher staff capable of implementing class meeting programs adjusted to new educational
standards (topics in life skills, healthy lifestyle, tolerance and protection of human rights,
etc.).

2. To organize seminars for current teaching staff with the same training programs, including
issuance of certificates confirming they are trained to hold new class meeting programs.


To the Judicial Training Center of BiH

1. To continually train judges and prosecutors concerning their obligation to protect the
highest level of internationally recognized human rights and fundamental freedoms
safeguarded by different constitutions and to invoke these standards in court verdicts.
At present, there are very few verdicts in which courts of law invoke provisions of the
Convention on the Rights of the Child, the European Convention for the Protection of
Human Rights and Fundamental Freedoms or any other conventions listed in the Annex to
the Constitution.

2. As part of the training on human rights of persons with HIV/AIDS, to underline the most
common violations of their rights: the rights to health care and protection of privacy and the
rights to education, work, social protection and indemnification for any violation of their
rights.
To tighten the criminal policy against perpetrators of violence against human rights, which
will not only bring protection and satisfaction to victims, but will also develop social
sensitivity over time and eliminate prejudice related to this issue.

3. To train judges and prosecutors in the practice of European courts concerning probative
procedure and the assessment of indemnification in cases of infection transmission via
infected blood; in unauthorized disclosure of HIV status; in transmission of infection through
sexual intercourse; and in the provision of needles by a HIV positive person.


To the World Conference of Religions for Peace

To advise all religious communities and officials that they should leave the dissemination of
scientific information about reproductive health of young people to scientific and modern
programs of world organizations for health, education and protection of children. In this way,
they will make the most direct contribution to a proper and healthy protection of reproductive
health of all members of their communities.
The Conference is hereby advised of a serious problem present among young people,
which is largely due to the existing prejudice about reproductive health. The responsibility for


51
this prejudice rests with all those who have been presenting or are still presenting to the
young generation, in any form, incomplete and/or distorted information about reproductive
health. Among other sources, such information is available to young people from religious
authorities insufficiently trained in such matters.
Since the World Conference of Religions for Peace (WCRP) consists of representatives of
the four most numerous religious communities in BiH, and since this Conference has
already initiated the drafting and enactment of the Law on Religious Communities in BiH in
the interest of peace among religions, it is reasonable to except that one of the priorities of
this Conference is actual care for believers.


To renowned reporters in BiH and editorial offices

1. To establish stronger cooperation with UNICEF and all governmental and non-
governmental organizations dealing with the protection of human rights, in order to employ
investigating reporting to raise awareness among the general public of the rights of children
and young people and to fight prejudice.
One feature of good reporting is to reduce harm and minimize anxiety of the general public
whenever possible, advocating at the same time those who are discriminated against, in
order to strengthen the democratic society.
In accordance with Article 17 of the Convention on the Rights of the Child, the state is
required to encourage the mass media to disseminate information and material aimed at the
promotion of the child’s social, spiritual and moral well-being and physical and mental
health. Since the state has not been doing this, it is a moral obligation of UNICEF, given its
mandate, to draw attention to this problem.

2. Inform the reporters that the Action Plan for Children 2002-2010, with respect to health,
provides for the raising of the level of knowledge among general population on the HIV
transmission, protection, continuous epidemiological surveillance of an adequate quality,
and inclusion of all segments of society in combating HIV infections. The reporters should
also be asked to monitor the implementation of the Global Fund project, which is currently
creating a policy for the national system of HIV/AIDS protection and treatment.

3. Reporters should be informed of the existence of a new regulation in the RS which
ensures HIV testing and treatment free of charge. They should also be asked to inform the
general public of this.




52

				
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