Burden of proof in antidiscrimination cases: Case law of the Supreme Court of Cassation

Abstract

Civil procedure in antidiscrimination lawsuits is a relatively new type of special litigation procedure, which still presents a challenge for both legal theoreticians and practitioners. Having in mind the position of the plaintiff in antidiscrimination proceedings, the legislator has prescribed the rules on shifting the burden of proof, following examples of good comparative practice. However, recent Supreme Court of Cassation case law shows that there is still room for clarifying certain provisions of the Anti-Discrimination Act. In particular, it is still questionable who proves what, and with which amount of certainty. In this paper, the author aims to answer this question and point out to other disputable issues, especially the correlation between the claim to establish discrimination and the claim for damage compensation.

Keywords

• anti-discrimination lawsuits
• burden of proof
• claim to establish dis­crimination
• damage compensation