PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation standards on legitimate types of evidence to establish a discrimination claim (and, in particular, on the role of testing and statistical data). The current section examines these issues. 1. Burden of proof Traditionally, in adversarial systems, individuals bringing legal action must prove that their rights have been violated. The onus, or burden, of proving the claim generally rests with the claimant. In discrimination cases, however, this can be problematic. The person alleged to have discriminated against the claimant is often more powerful, both in terms of resources and access to information. For example, proving that dismissal was discriminatory will require access to documentation and other information held by the employer; the employee will be unlikely to have access to the evidence necessary to proceed and so to require them to produce such evidence would undermine access to justice. A consensus has been reached on the need to depart from the traditional rules of evidence in discrimination cases. In its general comment No. 20 (2009), the Committee on Economic, Social and Cultural Rights stated that: “Where the facts and events at issue lie wholly, or in part, within the exclusive knowledge of the authorities or other respondent, the burden of proof should be regarded as resting on the authorities, or the other respondent, respectively.”687 More recently, the Committee on the Rights of Persons with Disabilities, in its general comment No. 6 (2018), stated that that there was a need to shift the burden of proof in civil proceedings from the claimant to the respondent in cases in which the claimant established a prima facie case that discrimination had occurred.688 CROATIA: THE BURDEN OF PROOF UNDER ARTICLE 20 OF THE ANTI-DISCRIMINATION ACT (1) If a party in court or other proceedings claims that his/her right to equal treatment pursuant to provisions of this Act has been violated, he/she shall make it plausible that discrimination has taken place. In this case, it shall be for the respondent to prove that there has been no discrimination. (2) The provision of paragraph 1 of this Article shall not apply to misdemeanour and criminal proceedings. The requirement for a “shifted” burden of proof is crucial for the effectiveness of civil and administrative law provisions that prohibit discrimination. The establishment of a prima facie case operates as a legal presumption that, once established, may be rebutted through the presentation of evidence indicating that (a) there was no difference in treatment or impact based on a protected ground; or (b) the provision, criterion or practice applied in the case in question was objectively and reasonably justified.689 94 687 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 40. 688 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), paras. 26 (g) and 73 (i). See also Committee on the Elimination of Racial Discrimination, general recommendation No. 30 (2005), para. 24; Committee on the Elimination of Discrimination against Women, general recommendation No. 33 (2015), para. 15 (g); Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 40; and CCPR/C/CZE/CO/4, para. 9. 689 Under the European Union equal treatment directives, the justification test only applies in cases of indirect discrimination. See further the discussion of justifications and exceptions in section I.A.4(a) of part two of the present guide.